hussein kisesa others vs morogoro municipal council 2018 tzhclandd 116 25 may 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPLICATION NO. 8 OF 2016 HUSSEIN KISESA & 382 OTHERS...............APPLICANTS VERSUS MOROGORO MUNICIPAL COUNCIL............RESPONDENT Date o f Last Order: 17/5/2018 Date of Ruling: 25/5/2018 RULING MGONYA, J. This is an Application for leave to Appeal to the Court of Appeal made under Section 47 (1) of LAND DISPUTES COURTS ACT, Cap. 216 [R. E. 2002]. The same is accompanied by the Affidavit of the Applicants' Counsel Mr. Japheth Eliamini Mmuru respectively; The origin of this Application is the Judgment of Madame Wambura, J. in Land Case No. 307 of 2010 dated 30th September, 2016. On the hearing date, the Counsel for the Applicant reported that the Respondent's Counsel gave an excuse for his absence that he had a family matter to attend, hence his absence. Further, it came to my knowledge through the court record that the Respondent was served in the year 2016 when this Application was instituted; however, they have never filed their Counter Affidavit as required by law. On this, learned Counsel Mmuru cited a number of cases on this issue stating that, since the Respondent has decided not to file counter affidavit, he has decided to sleep over his right. It is for this reason, I supported the submission and since I was satisfied that the Respondent's side held this matter unheard for so long for various reasons; and since the same was filed before this Registry in 2016, two years ago, for this simple Application of leave to Appeal to the Court of Appeal, I ordered Application to proceed Exparte. Turn to the merits of Application; the question before this court is whether the Applicants have adduced points of law fit for determination by Court of Appeal. Now having gone through the contents of Paragraph 3 and 4 of the Applicants" Affidavit which the Counsel for the Applicant suggested to be the points of law fit for determination by the Court of Appeal, I am satisfied with the said points since the same are inviting the Court of Appeal to ascertain and determine as to whether the trial court had tangible reasons advanced to dismiss the Applicants' suit. Further if the Applicants were the licensees of the Respondent or owner of the disputed land, and whether there was a sufficient evidence adduced by the Respondent to warrant the trial court to disentitle the applicants' ownership on the disputed land. It is my firm view that, the two above narrated points are matters of law and they are fit for determination by the court of Appeal. In view of the above, this court is hereby granting leave to the Applicant to appeal to the Court of Appeal in terms of the contents of paragraph 3 and 4 of the Applicants' Affidavit. In the upshot, the leave is hereby granted. I make no order as to costs. It is so ordered. L. E. MGONYA JUDGE 25/5/2018 COURT: Ruling delivered by J. C. Tiganga Deputy Registrar in the presence of Advocate Japhet Mmuru for the Applicants, Advocate Eliakim Samwel for the Respondent and Ms. Emmy B/C on 25thday of May, 2018. L. E. M JUDGE 25/5/2018