gayila gesa v elias salum 2023 tzhc 23146 1 december 2023

IN THE HIGH OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF SHINYANGA

AT SHINYANGA LAND APPLICATION NO. 44 OF 2022 (Originating from the judgment of the High court of Tanzania, Shinyanga Registry in Land Appeal No. 55 of 2021)

GAYILA GESA APPELLANT

VERSUS

ELIAS SALUM RESPONDENT

RULING 9th August, & 01 st December, 2023 MASSAM, J.: This is an application for leave to appeal to the Court of Appeal against the Decision of this court delivered by Hon. Matuma, J. on 29th July, 2022 in Land Appeal No. 55 of 2021. This application is made under section 47(2) of the Land Disputes Courts Act, [Cap 216 R.E 2019J which was brought by way of chamber summons supported by amended affidavit sworn by the applicant pursuant to the court's order and objected by the respondent who filed counter affidavit. Page 1 of 8 The brief background of the dispute is to the effect that, the applicant filed land application No 12 of 2021 at Maswa District Land and Housing Tribunal at Maswa (The tribunal) against the respondent which was pronounced in favour of the respondent. Displeased by the decision of the tribunal, the applicant preferred the appeal to this court on Land Appeal No 55 of 2021 challenging the tribunal's decision. The appeal was decided on 29th July, 2021 in favour of the respondent. Dissatisfied for the second time seeks to dispute the judgment of this court, hence this application for leave to appeal to the court of appeal. When the matter was called for hearing of this application the applicant was presented by Mr. Malengo learned advocate whilst the respondent was presented by Mr. Simon Kamkolwe, learned advocate. Submitting on the grounds of this application

Mr. Malengo prayed this court to adopt the contents and annexures of his amended affidavit to form part of his submission. He submitted that, for the court to grant his prayer, the applicant must show that there is prima facie and there are grounds which creates serious judicial consideration as was elaborated in Winford Mlagha Vs Dinales Paulo Mwasile at page 8 that; Page 2 of 8 ''Leave to appeal from an order in civil proceedings will normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration // He further submitted that in this case there are five grounds of appeal as in paragraph 6(1) of his affidavit, where as in relation to the first ground that there was a written agreement, he contends that Section 64 (l)(a)(b) of Land Act which provides for sale of land, it must be in writings, also Section 110 of The Evidence Act [CAP 6 R.E 2022] needs the terms of contract to grant any other disposition of property into formal evidence, no evidence shall be given in prove terms of such contract, land or other disposition of property except the document itself. He submitted that, this court granted the disputed land to the respondent who testified to have bought the land from Mashaka Lameck with no writings to prove the same, and therefore, if this court will grant this leave the court of appeal will be able to make

analysis of the evidence tendered. He also argued by challenging the evidence of DW3 by saying that, this court went contrary to Section 127(1) of TEA which deals with Page 3 of 8 competence of the witness that is not measured by position he holds in trial but his capacity to understand the question put to him as was in Sprendors T. Itd Vs David Raymond D'souza & another, civil appeal No 7 of 2020 CAT Arusha, therefore the court erred. On the last ground he contended that, the court erred by holding that the evidence of the respondent was strong than that of the applicant, while the applicant brought exhibits which is sale agreement but the respondent brought mere words, he therefore prayed that this application be granted with costs. On his part Mr. Simon Kamkolwe counsel for the respondent submitted that the right of appeal is conditional and the said right must be done judicially and court must prove the issues as raised in Lize Nathan Mwakuye Vs CRDB Bank and another, Miscellaneous Application No 403 of 2021 HC Land division DSM, page No 8. He mentioned the raised issuesto be, 1. Intended appeal must have general importance or novel point of law.

2. That the grounds show a prima facie or arguable appeal.

3. That the grounds are no frivolous, vexatious, useless or hypothetical. Page 4 of 8 4. That the appeal stands a reasonable chance of success.

5. That the proceedings reveal the disturbing features which require the guidance of the CAT. He submitted that, he agrees with the mentioned case of the applicant of Winford Mlanga (supra) he explained that the applicant's first reason do not fit to be a reason for grant, because the said agreement did not fit to be an agreement that's why this court decided to call Mabonyeso Nyasi as a witness hence oral evidence is acceptable. On the second and third reasons that, this court erred because there was no proof of writings and for basing on the general historical background evidence of Fabian Mihambo has no merit because oral evidence can be admitted and be considered by the court since the evidence was direct. He contested the fourth ground by stating that, this was correct to discredit the evidence of PW2 and PW3 as they testified that, they don't own the said land and they have no idea as to how it got into the respondent, thus the applicant does not have chance to succeed as he failed to establish the requirement to grant leave. On his rejoinder he submitted that the cited case of Loitare Medukesha Vs Anna Nalaya by this court is distinguishable at the Page 5 of 8 case at hand and that there is good reason to be granted leave to appeal so the Court of Appeal will interpret Section 64(1)(a) and (b) of the Land Act, [CAP 113 R.E 2022J and section 100,110,127(1) of The Law of

EvidenceAct. (Supra) Having gone through the respective submissions made by the learned counsel for the parties herein, the issue this court to determine is whether the Applicant has disclosed points of law which would warrant the intervention of the Court of Appeal. In principle, the granting of an application for leave to appeal to the Court of appeal is not automatic but rather, mostly depends on the discretion of the Court, which, however, must be exercised judiciously as it was discussed in the case of Rutatigana C.L Vs The Advocate Committee and Another, Civil Application No. 98 of 2010 (unreported), the Court of Appeal was of the views that: '}:In application for leave is usually granted if there is good reason, normally a point of law or point of public importance that calls for this Court's intervention. N Indeed, on the aspect of leave to appeal, the underlying principle was well stated by this Court in Harban Haji Mosi and Another v Page 6 of 8 Omar Hilal Seif and Another, Civil Ref. No.19 of 1997 (unreported) thus: ''Leaveis grantable where the proposed appeal stands reasonable chances of successor where/ but not necesseruy; the proceedings as a whole/ reveal such disturbing features as to require the guidance of the Court of Appeal. The purpose of the provision is. therefore/ to spare the Court the specter of un meriting matters and to enable it to give adequate

attention to cases of true public importance. If It was further stated in the decision of The Regional Manager- TAN ROADS Lindi vs DB Shapriya and Company Ltd, Civil Application No.29 of 2012 CA (unreported) that: - "It is now settled 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... // Coming to this matter at hand, the applicant proposed six grounds that this court erred to reach his decision without considering the requirement to the aforementioned provisions. Page 7 of 8 Having observed as above ,I find that the application at hand meet the condition listed above for granting the prayed leave to appeal to the Court of appeal, and for this reason I agree with Mr. Malengo that this application has merit and consequently allowed. Therefore, the application for the leave to appeal to the Court of Appeal of Tanzania is hereby granted without costs. It is so ordered. R. B. as~:;.y..",,.,.

JUDGE 01/12/2023 Page 8 of 8