hanna swahiba mapalala another as joint administrators of the estate of the late james mapalala vs monica lwebandiza 2022 tzhclandd 12691 25 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO. 319 OF 2022 (Originating from APPEAL No. 284 of 2021 and Land Application No. 279 of 2017 of 2017 of the District Land and Housing) HANNA SWAHIBA MAPALALA AND BENARD JAMES MAPALALA (as joint administrators of the estate of the late JAMES MAPALALA)................................................. APPLICANTS VERSUS MONICA LWEBANDIZA............................................................. RESPONDENT RULING 26 October, 2022 2Sh November, 2022 L. HEMED, J. This application has been brought under Section 47 (2) of the Land Disputes Court Act [Cap 216 R.E. 2019] where as the applicants HANNA SWAHIBA MAPALALA and BENARD JAMES MAPALALA who are the joint administrators of the estates of the late JAMES MAPALALA are seeking for the following orders "(a). That this Honorable Court be pleased to grant leave for the Applicant to appeal to Court of Appeal of Tanzania in respect of the Judgment delivered by Honorable Msafiri, J on ltfh May, 2022. i (b)...... (c)...... The basis of the application is that the applicant were aggrieved by the decision of this Court in Land Appeal No. 284 of 2021 and are now seeking to knock the gate of the Court of Appeal of Tanzania by way of an appeal. The application was argued by way of written submissions whereas the applicant enjoyed the service of Mr. Augustine Kusalika, learned advocate while the respondent was duly represented by Mr. Francis Mgare, learned advocate. According to the affidavit deponed by the applicant and the written submissions to support the application, the grounds raised thereto are such that the High Court refused to address the issue of ownership while the decision of the Tribunal did not declare the Respondent rightful owner of the property situated at Plot No. 404 Ursino North Kinondoni Municipality, Dar es Salaam. In the opinion of the Applicant the Court failed to address the issue of ownership claimed by the Applicants in respect of Plot No. 404 Ursino North Kinondoni Municipality, Dar es Salaam. It is the view of the 2 applicants that there are legal matters to be adjudicated upon by the Court of Appeal of Tanzania. On the part of the respondent, it was argued that for this Court to grant leave to the applicants, the latter's are supposed to demonstrate that there are points of law or mixed points of law and facts worth to be determined by the Court of Appeal. He invited this Court to see the decision in Said Ramadhani Mnyanga vs. Abdallah Salehe (1996) TLR 74, Simon Kabaka Daniel vs. Mwita Marwa Nyang'anyi & 11 Others (1989) TLR 64 and that of National Bank of Commerce vs. Maisha Musa Uledi (Life Business Center) (2020) TLR 525. According to the Respondent, the only point which the applicants counsel pointed out in the affidavit is the issue of ownership which is a point of fact or evidence and not a point of law nor a mixed point of law and facts worth consideration by the Court of Appeal. It was submitted by the respondent further that the issue of ownership was not among the issues which were originally raised and determined by the District Land Housing Tribunal of Kinondoni and so this Court was justified to dismiss the ownership issue raised by the applicants because the same was raised 3 by the late James Mapalala vide Civil Case No. 171 of 2003 in respect of the same suit property. Having gone through the written submissions made by the parties through their respective advocates, it is now my turn to decide as to whether the application for leave to appeal to the Court of Appeal of Tanzania has merits. I am aware that leave to appeal to the Court of Appeal is never an automatic action as it falls within the discretion powers of the Court to grant or refuse the leave. Generally, leave to appeal to the Court of Appeal of Tanzania is normally granted where the ground raise issues of general importance or where the grounds show prima facie or arguable appeal. In Said Ramadhani Mnyanga v. Abdallah Salehe [1996] T.L.R 74 the High Court of the United Republic of Tanzania Msumi, J, held that: " There must be arguments shown by the applicant that raise contentious issues for further consideration by the Court ofAppeal". In the present Application the applicant has raised argument that the High Court refused to address the issue of ownership while the decision of the Tribunal did not declare the respondent rightful owner of the property 4 situated at Plot No. 404 Ursino North Kinondoni Municipality, Dar es Salaam. The applicant is of the view that the Court failed to address the question of ownership of the suit property. The respondent on her part was of the opinion that this Court was justified to dismiss the issue of ownership because it was not originally raised and determined by the District Land and Housing Tribunal. The respondent seems to challenge the merits of the suggested ground of appeal. I am of the firm view that this is not the proper stage to go to the merits of the grounds of appeal. I am holding so because Judges in application for leave to appeal to the Court of Appeal are not supposed to overstep into the mandate of the Court of Appeal. In Lightness Damian & 5 Others vs. Said Kasim Chagela, Civil Application No. 40 of 2020 (unreported) the Court of Appeal of Tanzania held that: "It is not the duty of the judge to determine whether or not the grounds are meritorious. By doing that it is to overstep into the mandate of the Court ofAppeal to which the appeal lies". It is my take that in application like the one at hand, judges are bound to avoid making decision on the substantive issues before the appeal itself is 5 heard. In the present application, the applicant has raised the ground on failure of the Court to determine the issue of ownership of the suit landed property. Whether the ground has merit or not is none of the business of this Court at this stage. In conclusion, I am of the considered view that the arguments raise contentious issues fit for further consideration by the Court of Appeal. The application is thus granted. Each party to bear its own costs. It is so ordered. DATED at DAR ES SALAAM this 25th day of November, 2022. COURT: Ruling delivered this 25th day of November, 2022 in the presence of Mr. Augustine Kusalika, learned advocate for the Applicant also holding brief of Mr. Francis Mgare, learned advocate for the Respondent. JUDGE 25/11/2022 6