joachim zuberi msofe vs jacob jesse angowi 2023 tzhc 22572 7 november 2023

IN THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

HIGH COURT OF TANZANIA

MOSHI DISTRICT REGISTRY

AT MOSHI MISCELLANEOUS LAND APPLICATION NO. 25 OF 2023 (From Miscellaneous Land Appeal No. 09 of 2022 in the High Court of Tanzania, Moshi District Registry. From Land Case Appeal No. 40 of 2021. Originating from South Kirua Vunjo Ward Tribunal Application No. 02 of 2021) JOACHIM ZUBERI MSOFFE..….……...……….……….……………… APPLICANT

VERSUS JACOB JESSE ANGOWI…………..…………………………………RESPONDENT

RULING Date of Last Order: 04.10.2023 Date of Ruling : 07.11.2023 MONGELLA, J. The applicant has preferred this application under section 47 (3) of the Land Disputes Courts Act. He is seeking for this court to grant him a certificate of point of law so that he can file his appeal before the Court of Appeal against the judgement of this court rendered in Miscellaneous Land Appeal No. 09 of 2022, which was delivered on 25.05.2023. He also prayed for this court to grant him costs of this application and any reliefs it deems fit. The application was supported by the applicant’s sworn affidavit and was contested by the respondent’s sworn affidavit. It was argued viva voce whereby the applicant was represented by Mr. Joshua Mambo, learned Advocate, while the respondent was unrepresented. Page 1 of 6 According to the facts deponed in the applicant’s affidavit as well as the submissions of Mr. Mambo, the applicant happens to be the Chairman of Wasofe clan whose land was sold to the respondent on 25.08.2021 by one Goodness Bakari, his sister-in-law, without approval of the clan members and leaders. He claimed that as the clan head, he successfully filed an application in the South Kirua Vunjo Ward Tribunal. The decision was appealed against by the respondent in the District Land and Housing Tribunal for Moshi at Moshi vide Land Appeal No. 40 of 2021, of which he again won.

The respondent then filed Miscellaneous Land Appeal No. 09 of 2022 before this court which was determined in his favour. The applicant is disgruntled by the decision, hence wishing to knock the doors of the Court of Appeal, but as the law requires, has to first obtain a certificate on point of law. Mr. Mambo averred that the applicant filed his notice of appeal to the Court of Appeal on 03.06.2023, The same was attached to his supporting affidavit. He maintained that the applicant has locus standi as he has interest in the suit land derived from being a member of the Wasofe Clan, which owns the suit land. That, the said fact was proved by the 2nd and 3rd witnesses who testified in his favour at the trial ward tribunal, hence the High Court erred in holding that he did not disclose that he had locus standi because he failed to furnish necessary documents. On those bases, he prayed for this court to issue him a certificate certifying that there is a point of law to be addressed by the Court of Appeal. The respondent’s arguments as presented in the counter affidavit as well as in his submissions was that, the applicant lacks locus standi as he had Page 2 of 6 never been the chairman of the Wasofe Clan as he failed to prove his appointment to that effect. Further, he argued that the land was legally owned by one Goodness Bakari since 1982 rendering the sale made to him being legal.

He contended that the applicant had filed the case in his individual capacity and even claimed the land to be his and not of the clan as evident on the ward tribunal proceedings. In the premises, he was of the view that there was no point of law to be argued at the Court of Appeal. After considering the submissions of both parties, I find it uncontested that the applicant had successfully sued the respondent before the South Kirua Vunjo ward tribunal. It is also uncontested that the respondent appealed to the District Land and Housing Tribunal, which decided in the applicant’s favour leading to the respondent’s appeal to this court, which he lost rendering him to file the application at hand seeking for certificate on point of law. It is settled position that certification on point of law, for purposes of appeal to the Court of Appeal, is not automatic. This court therefore ought to consider the points to be certified contained in the affidavit of the applicant and to frame or approve and adopt the same as points of law. In Dorina N. Mkumwa vs. Edwin David Hamis (Civil Appeal 53 of 2017) [2018] TZCA 221 TANZLII, the Court of Appeal gave the following guidance in applications such as this. It ruled: “Therefore, when High Court receives applications to certify point of law, we expect Rulings showing serious evaluation of the question whether what is proposed as a point of law, is

worth to be certified to the Court of Appeal. This Court does not expect Page 3 of 6 the certifying High Court to act as an uncritical conduit to allow whatsoever the intending appellant proposes as point of law to be perfunctorily forwarded to the Court as point of law. We are prepared to reiterate that Certificates on points of law for appeals originating from Ward Tribunals mark a point of finality of land disputes that are predicated on matters of fact. Certificates are designed to ensure that land disputes originating from Ward Tribunal come to an expeditious end, preferably in the High Court.” Mr. Mambo has, in this application, stated that the applicant intends to challenge the decision of this court in Miscellaneous Appeal No. 09 of 2022 for it erred in declaring that he lacked locus standi in the matter. To cement his argument, he referred this court to the testimony of the applicant’s 2nd and 3rd witnesses at the trial court. I believe this was enough to show that he could hardly support his argument that he had a point of law. The reasons backing his statement are based on matters of fact alone, matters that will refer the court back to the testimonies of the witnesses thereby defeating the requirement in certifying a point of law. What amounts to a point of law was well expounded in Haji Mradi vs. Linda Sadiki Rupia (Civil Appeal 24 of 2016) [2019] TZCA 263

TANZLII, whereby the Court of Appeal held: “In this regard, it is crucial on what comes by way of an appeal to be certified as points of law and not fact. We say so because the factual matters require evidence and are dealt with conclusively by the courts below. Thus, a point of law should be free from the need to ascertain it by evidence. There can be no pure point of law where there are facts that require proof by evidence.” Page 4 of 6 I am satisfied that the two appellate courts were better set to determine the matter as it carried both elements of facts and law triable before them. In fact, the claim was adequately determined by this court. If such point is allowed to progress to the Court of Appeal, the Court will have to go into re-evaluation of the evidence on record and thus address matters of fact and not law. This is contrary to the requirement of law. Insisting that a matter ought to be of a legal nature, the Court of Appeal in Magige Nyamoyo Kisinja vs. Merania Mapambo Machiwa (Civil Appeal 87 of 2018) [2021] TZCA 42 TANZLII stated: “We must emphasize that the point to be certified by the High Court must be that of legal nature and significant to warrant the decision of the Court. It is not enough for a party in a third appeal, like in the instant appeal, to simply think the lower court is wrong in its decision to have his case heard by the Court of Appeal. Matters

of law which the Court is called upon to determine must transcend the interest of the immediate parties in the appeal. Indeed, in some cases matters of law placed before the Court for determination are of public importance especially when an interpretation of the law is involved. From the foregoing, I am therefore of the considered view that the applicant has failed to demonstrate and advance any point of law worth of being certified as such for determination by the Court of Appeal. While he advanced the question of locus standi, he failed to demonstrate the legal issues pertaining the same. Page 5 of 6 As such, I find the issue of locus standi not sufficing to be termed as a proper point of law. The application therefore stands dismissed, with costs. Dated and delivered at Moshi on this 07th day of November 2023. X L. M. MONGELLA

JUDGE Signed by: L. M. MONGELLA Page 6 of 6