finca microfinance bank vs halima mwaisaka 4 others 2023 tzhclandd 17217 13 december 2023

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IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPLICATION NO. 278 of 2023 (Originating from the Judgement and Decree of the High Court of Tanzania (Land Division) at Dar es Salaam by Hon. Msafiri, Jin Land Appeal No. 170 of2021) FINCA MICROFINANCE BANK................................................... APPELLANT

VERSUS HALIMA MWAISAKA........................................................... 1st RESPONDENT ATHUMAN MAULID KOMBO.........................................................................2ndRESPONDEN SHAMSHAM HUSEIN OMARIM.................................................................. 3rdRESPONDEN BOSTON AUCTION MART & GENERAL AGENCY......................................... 4thRESPONDEN STEPHEN LAUREAN KASHUSIIURA............................................................. 5thRESPONDEN

RULING Date of last Order:28/09/2023 Date of Ruling:13/12/2023 K. D. MHINA, J, Under Section 47(2) of the Land Disputes Courts Act, [Cap 216 R.E. 2019], Section 5 (1) (c) of The Appellate Jurisdiction Act, [Cap 11 R.E 2019], Rule 45(a) of The Tanzania Court of Appeal Rules, GN No. 368 of 2019 and Section 95 of Civil Procedure Code, [Cap 33 R.E 2019], the applicant, Finca Microfinance Bank, is, inter alia, seeking the following orders against the respondents; Page 2 of 8 1. That the honourable court be pleased to grant leave to the applicant to appeal to the Court ofAppeal of Tanzania 2. That cost of this application be provided Briefly, in 2015, the 2nd respondent was granted a loan of TZS. 8,000,000/= by the applicant, and the 3rd respondent guaranteed the loan by his house located at Mbagala Kuu Kaskazini, Temeke District, Dar es Salaam, House No. TMK/MBGK/MBK25/411A. When the 3rd respondent defaulted, the applicant sold the mortgaged property through the 4th respondent, and the 5th respondent bought the house after emerging as the highest bidder in the auction. The 1st respondent filed Land Application No. 345 of 2016 at the DLHT of Temeke against the applicant and other respondents, claiming, among others, for an order that the auction was null and void and that she is a lawful owner. After hearing, the DLHT delivered the judgment against the 1st respondent. Aggrieved, the

1st appealed to this court vide land Appeal No. 170 of 2021. On 16 March 2022, this Court overturned the DHLT decision by quashing the auction and declaring the 1st respondent as a lawful owner. The applicant was dissatisfied and intended to appeal to the Court of Appeal against this Courts decision. The grounds for the application were expounded in the supporting affidavit, which Mr. Beatus Malima, the Head of the Legal Department and the Company Secretary of the applicant, swore in support of the application. Page 3 of 8 Relevant to this application is paragraph ll(i) - (ii) of the affidavit, containing the grounds for which the application will seek the attention of the Court of Appeal if leave would be granted. The grounds are as follows; i. Whether it was legally correct for the court to determine ownership of the landed property in the absence of legal justification on the supremacy of the agreement and residential license so far as land matters are concerned. ii. Whether it was legally correct for the court to enter judgment for the 1st respondent where there was contradictory and insufficient evidence as to ownership of the landed property. ill. Whether failure to properly analyse evidence on record, which leads to the rights of parties being prejudiced, is fatal. The application proceeded by way of written submissions. Ms. Yusta Kibuga, learned advocate, represented

the applicant, while Mr. Muganyizi Shubi, also a learned advocate, represented the 1st respondent. The matter proceeded ex parte against 3rd,4th and 5th respondents. The 2nd respondent filed a counter affidavit but did not file any submission to support his allegations. In supporting the application, Ms. Kibuga cited the decision of the M/S Hodi (Hotel Management Company Limited) v. M/S Sandu Plumbers Limited, Misc. Civil Application No. 70 of 2021 Further, she submitted that the 2nd respondent guaranteed the loan advanced to the 3rd respondent with his house located at Mbagala Kuu Kaskazini, Temeke District, Dar es Salaam, House No. TMK/MBGK/MBK25/411A. Page 4 of 8 The Applicant made a search at the Local Government Authority at Mbagala Kuu and Temeke Municipal Council, which issued the Residential License to the Applicant and was assured that the landed Property belonged to the 2nd respondent as reflected in the License Annexure A-l. Ms. Kibuga submitted that Hon. Judge, in quashing the trial court judgement, erred in law to hold that the residential license could not stand by itself as proof of ownership by relying on the sale agreement, which was never registered anywhere and had no Stamp Duty contrary to the requirement of the law therefore inadmissible. Moreover, he submitted that the law under sections 8 and 9 of the Registration of Documents Act [Cap. 117 R.E 2002]

provides clearly that failure to register a sale agreement of un surveyed plot renders the sale agreement as documentary evidence inadmissible in Court for want of proof of registration. Registration of the sale agreement of un surveyed plot is a pre­ condition for its admissibility as evidence in Court. Moreover, Section 47 (1) ofStamp Duty Act Cap 189 provides that; "No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent ofparties authority to receive the evidence or shall be acted upon, registered in evidence authenticated by any such person or by any public officer unless such instrument is duly stamped." Based on the provisions above, she argued that it is ciear that the position of the law as it stands for the sale agreement was inadmissible evidence in law; therefore, the honourable court did not consider that position of the law and thus arrived at an erroneous decision. Page 5 of 8 Responding to the applicant’s submissions, Mr. Shubi submitted that the applicant did not meet the legal requirement for the court to grant leave. He insisted that leave is not automatic but granted after the applicant met the legal thresholds. Referring to paragraphs 8,11,12, and 13 of the 1st respondent’s affidavit and paragraph 8 of the 2nd respondent counter affidavit, he insisted that the alleged points are no

longer arguable at the court of appeal. To support his argument, he referred to the case of Erasto Daima Sanga vs. Peter Mwonga, Misc. Land Application No. 66 of 2019 [HC] (Tanzlii) that leave to appeal to the Court of Appeal is granted by discretion of the court that must be exercised judicially and is granted where the grounds of appeal raise issues of general importance or novel point of law or prima-facie arguable appeal. In her brief rejoinder, the applicant's counsel maintained that, leave has to be granted for there is an arguable issue by the court of Appeal. Cementing his assertions, he cited the case of British Broadcasting Corporation vs Erick Sikujua Ng'moryo Civil Application No. 138 of 2004. I have considered the arguments by both parties through their submissions, and I have gone through the affidavit and counter-affidavit. The point for determination is whether the applicant has advanced points of law that need the intervention of the Court of Appeal. In deliberation and determination of the issue, first, it should be noted that granting leave to appeal is not automatic rather than the Court's discretion. This is because the Court must scrutinize, ascertain and satisfy itself if the points raised by the applicant (s) are worth of being considered by the Court of Appeal before granting or refusing leave. Page 6 of 8 While doing that scrutiny, the Court of Appeal

has cautioned this Court that when dealing with applications of this nature, it is important to carefully scrutinize the applications. In Dorina N. Mkumwa vs. Edwin David Hamis, Civil Appeal No.53 of 2017 (Tanzlii), the Court of Appeal held that it is not expected for this Court to act as an uncritical conduit to allow whatsoever the intending appellant proposes to be perfunctorily forwarded to the Court of Appeal. Further, that scrutiny must be done cautiously to avoid falling into the "trap" of determining the merits or demerits of the grounds of intended appeal. See Jireys Nestory Mutalemwa vs. Ngorongoro Conservation Area Authority, Civil Application No. 154 of 2016 (Tanzlii), where the Court of Appeal held that; "...a Court hearing an application should restrain from considering substantive issues that are to be dealt with by the appellate Court. This is so in order to avoid making decisions on substantive issues before the appeal itself is heard..." Flowing from above, while balancing the scrutiny of the application and avoiding falling into the trap of determining the merits or demerits of the intended grounds of appeals, there are essential issues to be considered in granting or refusing leave to appeal. The issues are as follows; One, the Court must ascertain if there is a legal point worth being considered by the Court of Appeal. See Marcus Kindole Vs. Burton Mdinde,

Civil Application No. 137/13 of 2020[COA] (Tanzlii). Two, the Applicant must demonstrate that the intended appeal raises issues of general importance or novel point of law. See HTT In Franco Limited vs. Juliano Charles Mkongomi, Misc. Civil Application, No 24 of 2020 [HC] (Tanzlii). Page 7 of 8 Three, there must be prime facie grounds meriting an appeal. Erasto Daima Sanga Vs, Peter Mwonga, Misc. Land Application No. 66 of 2019 [HC] (Tanzlii) Four, if the matters are of public importance and raise serious issues of misdirection or non-direction, it results in a failure of justice. See Erasto Daima Sanga (Supra) Five, there must be serious and contentious issues of law or fact fit for consideration by the Court of Appeal. Therefore, at this stage, this Court will confine itself to whether the proposed grounds pass the test of the factors to be considered before granting leave. The key issue of dispute is based on the decision of this Court when quashing the trial court judgement holding that the residential license could not stand by itself as proof of ownership and based its decision on the sale agreement that was alleged it was never registered anywhere and had no Stamp Duty. Therefore, flowing from the above, by looking at the impugned decision in Land Appeal No. 170 of 2021, in my view, the grounds of complaints by the applicant raise the points of law worth considering

by the Court of Appeal. The issues raised were contentious and fit to be considered by the Court of Appeal. Thus, without going further in order to avoid falling into the "trap" of determining the merits or demerits of the grounds of intended appeal. From the above discussion and the cited decision, I hold that the points raised by the appellant are worthy of being considered by the Court of Appeal. Psge 8 of 8 Consequently, this application has merit and is hereby granted, and I order no costs.