20170818 TZHC Dar es Salaam

fi...,.iP .(,,;;,' ~ .. ·. ,;, IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUSSA, J.A., MUGASHA, J.A. And MWAMBEGELE, J.A.) CIVIL APPEAL NO. 62 'B' OF 2014 1. HASHIM RUGWE t/a H. RUNGWE LTD( ........................ APPELLANTS 2. BADRU ISSA BADRU (·--- VERSUS OMARY KILENDU ............................................................ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania {Land Division) at Dar es Salaam) (De-Mello, J.) dated the 28 th day of September, 2012 in Land Appeal No. 93 of 2009 RULING OF THE COURT 4 th & 22nd August, 2017 MUSSA, J.A.: In the Kinondoni District Land arid Housing Tribunal, the respondent ·' unsuccessfully sued the appellants over ownership of a house located at Manzese Sisi kwa Sisi, within Dar es Salaam City. Dissatisfied, the respondent preferred an appeal to the High Court where the decision of the Tribunal was overturned in his favour (De-Mello, 1 •J J.). Aggrieved, the appellants presently seek to impugn the decision of the High Court upon a memorandum which is comprised of two points of grievance. It is, perhaps, pertinent to observe, from the very outset, that in their venture to impugn the decision, the appellants sought and were granted by the High Court leave to appeal to this Court [Mziray, J.; as he then was]. Incidentally, the referred application for leave to appeal was sought by way of a Chamber Summons which was predicated under Rule 45(a) of the Tanzania Court of Appeal Rules, 2009 (the Rules). When the appeal was placed for hearing before us, the first appellant, who happens to be a legal practitioner, appeared in person, whereas the second appellant was represented by two le.arned Advocates, namely, Messrs Denis Msafir:i and Heavenlight Mbinga. The respondent did not enter appearance and, apparently, he was not served with the notice of hearing. Despite the absence of the respondent, we required the appellants to address us on the competence of the appeal, more particularly, in the light of the fact that the quest for leave to appeal in the High Court was seemingly sought through an ,inapplicable provision of the Rules. Both Messrs Rungwe and Msafiri readily conceded that the application for leave to appeal to this Court was improperly sought under Rule 45(a) of the Rules instead of section 2 47 (1) of the Land Disputes Courts Act, Chapter 216 of the Revised Laws (the Act). That being so, they both advised us to strike out the appeal for incompetence without an order as to costs. Mr. Msafiri went further and urged us to invoke our revisional jurisdiction and quash the proceedings of the High Court which culminated in the granting of the abortive leave to appeal to this Court. Addressing the issue of contention, we deem it instructive to preface our determination with an observation that we are keenly alive to the fact that, in certain instances, an application for leave to appeal to this Court may appropriately be taken under section 5(1) (c) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws (AJA) or, as the case may be, under the provisions of Rule 45 (a) of the Rules. Nonetheless, land related matters are on a different footing inasmuch as section 47 (1) specifically makes provision for seeking such leave in the High Court as follows:- " Any person who is aggrieved by the decision of the High Court in the exercise of its original revisional or appellate jurisdiction may, with leave of the high Coure appeal to the Court of Appeal in accordance with the Appellate Jurisdiction Act. // 3 This provision is, so to speak, the appropriate enabling provision for the granting of leave to appeal to this Court in land related matters. Upon a plethora of decisions, this Court has consistently held that where an applicant for leave in respect of a land related matter does not invoke the provisions of section 47 (1) of the Act but, instead, wrongly moves the High Court under the provisions of section 5( 1) ( c) of AJA or, as is the case here, under Rule 45 (a) of the Rules, the resultant leave, if granted, will be rendered invalid (see, for instance, the unreported decisions of the Court in Civil Appeal No. 96 of 2013 - Lucy Daniel Mpiluka & Two Others Vs. Finca Tanzania & Two Others; Civil Appeal No. 97 of 2013 - Mabao Ying Vs Mbeya City Council; Civil Appeal No. 32 of 2015 - Jamila Surendra vs. Surendra @ Mohamed Dharumsi Jutha; and Civil Appeal No. 77 of 2015 - Hassan Shawa & Another Vs. Jackson Ndesingo & Two Others). To this end, we unhesitatingly find that the application for leave to appeal in the High Court was premised under an inapplicable provision of the law. That being the position, it necessarily follows that the resultant leave to appeal which was granted by the High Court was illegitimate and invalid. 4 In view of the glaring fatality, we are left with no other option than to invoke the Court's revisional jurisdiction under section 4 (2) of AJA and we, accordingly, nullify the entire proceedings of the High Court pertaining to the application for leave to appeal to this Court. Having done so, this appeal is left with no legs to stand on and the same is hereby struck out but, since the fatality was raised by the Court, suo motu, we give no order as to costs. DATED at DAR ES SALAAM this 18th day of August, 2017. K.M. MUSSA JUSTICE OF APPEAL S.E.A. MUGASHA JUSTICE OF APPEAL J.C.M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original. . . A A.H. MSUMI DEPUTY REGISTRAR COURT OF APPEAL .. ~- - ~- - --::·--,· -- . - - - 5