ibrahim daud mjema vs anna godfrey mjema 2021 tzhclandd 727 17 september 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 33 OF 2021 IBRAHIM DAUDI MJEMA APPLICANT VERSUS ANNA GODFREY MJEMA RESPONDENT Last order:22/07/2021 Ruling date: 17/09/2021 RULING MANGO,J. The Applicant seeks leave to appeal to the Court of Tanzania against the decision of this Court in Land Appeal No.173 of 2019 dated 16^^ December 2020. The Application is by way of Chamber summons made under section 47(2) of the Land Disputes Courts Act,[Cap 216 R. E. 2019] supported by an affidavit sworn by SHAMIMA SALIM HIZA, counsel for the Applicant, The Application is contested by the Respondent. On 22"^ September 2021 when this application was called for hearing, the Applicant was represented by Shamima Hiza, learned advocate while the Respondent was represented by Novatus Muhangwa, learned advocate. Submitting in support of the Application Ms. Hiza, cited article 13(6)(a) of the Constitution of United Republic of Tanzania and argued that right to appeal is a constitutional right. She also informed this Court that the Applicant has 1 already filed a notice of appeal to the Court of Appeal of Tanzania and he is now seeking leave to appeal to the Court of Appeal. She cited Section 5(2)(c) of the Appellate Jurisdiction Act,[Cap 141 R. E. 2019] and section 47(2) of the Land Disputes Courts Act,[Cap. 216 R. E. 2019] as enabling provisions for leave applications. She also highlighted that the applicant is aggrieved by the decision of this Court in Land Appeal No. 173 of 2019 because the Court did not consider the fact that the Applicant is the owner of the suit house and that, he produced a loss report of the sale agreement between the Applicant and his vendor. She is of the view that, this Court did not consider the lost sale agreement when determining the Appeal before it. In his reply submission, Mr. Muhangwa adopted the contents of the counter affidavit filed by the respondent to form part of his submission. He argued that the application deserves to be dismissed due to the Applicant's failure to establish any issue worth to be determined by the Court of Appeal. Citing the decision of the Court of Appeal of Tanzania in British Broadcasting Cooperation Versus Erick Sikujua Ng'maryo Civil Application No.138 of 2004, Court of Appeal of Tanzania at Dar es salaam, he argued that in an Application for leave the Applicant must establish arguable case worth to be determined by the Court of Appeal. He submitted further that, in the case at hand the Applicant did not establish any arguable case. The affidavit filed in support of the Application does not contain any fact establishing existence of an arguable case. The advocate for the Applicant tried to raise the issues she considered to require determination of the Court of Appeal during submissions before the Court. He is of the view that, such issues were required to be contained in the affidavit as submission from the bar cannot be considered to have evidential value. On the status of submissions from the bar as opposed to the contents of the affidavit, he cited the 3se of The Registered Trustees of the Archdiocese of Dar es salaam versus The Chairman Bunju Village Government and others Civil Appeal No. 147 of 2006, Court of Appeal of Tanzania at Dar es Salaam. He then prayed that, the issue raised by the Applicant's counsel in her submission should not be considered. In her brief rejoinder, advocate Hiza submitted that, the issue raised in her submission deserve to be considered because the Chamber Summons clearly indicates that grounds for application are contained in the affidavit and others to be adduced during hearing. I have considered submissions by both parties and Court Record. I agree with the Respondent's Counsel that in an application for leave to appeal to the Court of Appeal of Tanzania, the Applicant need to establish an arguable case worth to be determined by the Court of Appeal as elaborated in the case of British Broadcasting Corporation cited by the Respondent's Counsel. In the application at hand, the Applicant's counsel contends that, this Court did not consider the Applicant's lost sale agreement in determining the Appeal. Without prejudice to the learned counsel for the Applicant, Court record indicates that the Court considered the said sale agreement but in the course of analyzing evidence adduced before the trial tribunal, this court found that the Respondent's evidence weighs more than the Applicant's. The relevant paragraph which appears at page 13-14 of the judgement reads; On all those discrepancies found in the evidence adduced during triai, the best evidence to be adduced by the respondent wouid have been the documentary evidence to prove his ownership ofthe suit iand. This couid be in any form iike saie agreement or right of occupancy, only that documentary evidence would have defeated the Appellants well elaborated evidence during trial. In absence of the sale agreement(allegedly to have been lost)and following the rich evidence adduced by the Appellant and her witnesses during trial. It was sufficient to find that the Respondent has failed to establish his ownership to the suit property while the Appellant successfully established that the suitproperty belonged to her late father, Geofrey Mjema then also known as Ibrahim Mjema. Despite such observation, the Court noted that the name Ibrahim Daudi Mjema is not the Applicant's name as the Applicant in his own testimony stated that he has registered a sIm card as Abraham Daudi Mjema and he also admitted to be Abraham Mjema. The Court held expressly that it was wrong for the trial tribunal to assume that Abraham Daudi Mjema is the same person as Ibrahim Daudi Mjema (see page 13 of the judgement). Given the analysis of evidence done by my sister, Hon. Maghimbi J, I am of the view that the lost sale agreement was considered by the Court in determining the Appeal, Land Appeal No. 173 of 2019. And, I do not find any other issue that worth to be determined by the Court of Appeal. For that reason, I hereby dismiss the Application with costs. Z. D, MANGO JUDGE 13/9/2021