joseph mbuya vs ngalipambone mahita 2012 tzhc 181 12 july 2012

IN THE HIGH COURT OF TANZANIA [LAND DIVISION] AT MTWARA MISC. CIVIL APPLICATION NO. 10 OF 2011 JOSEPH M B U Y A ................................................... APPELLANT VERSUS NGALIPAMBONE MAHITA .............................RESPONDENT Date of Last Order - 22/09/2012 Date of Ruling - 12/07/2012 RULING MIPAWA, J. The application by Joseph Mbuya, which is preferred under section . 5(1) (c) and 2(c) of the appellate jurisdiction Act, Cap. 141 R.E 2002 and Order XXXIX Rule 5(1) of the Civil Procedure Code, Cap.33 R.E 2002, contains prayers inter - alia; that this honourable courtbe pleased to grant leave to appeal to the Court of Appeal as there is a point of law involved in the intended appeal. The application is supported by the affidavit sworn by one Joseph Mbuya herein referred to as the applicant. A brief background of this application shows that the matter started as a Probate Cause before Lisekese Primary Court in Masasi District via Probate Cause No.32 of 2003 where the Respondent Ngalipambone Mahita applied for appointment as an administrator of the estate of the late )audi Mahita. He was duly appointed to be the administrator on /1 1/2004. Properties left behind by the late Daudi Mahita were listed uring hearing of the probate among them is a house on plot no.21 Block \l” located at Wapiwapi area within Masasi Township, which was a subject subject of appeal in this court. The record further shows that it was decided by their heirs that the aid house be sold to one ally Ibrahim Bushiri of Tunduru at 15.1,500,000/=. However such sell could not materialize as the land fice of Masasi drew the attention of the District Court regarding ownership the said house, that their land office records showed the owner as )hana Mlaponi and not Daudi Mahita. The District Court called for the :ord of that case and revised the Primary Court order of selling the house er it was satisfied that the land officer report had merits. That was done 27/4/2005 in Civil Revision no.2005. the District court ordered that the it plot should not be sold unless and until the name of the owner was anged from Yohana Mlaponi to that of Daudi Mahita. On the 28/12/200S the Respondent requested the Primary Court to je a stop order to one Joseph Mbuya [applicant] who was seen building the suit plot whereof the prayer was granted and the applicant was nmoned to appear before the Primary court. On 7/1/2010 when the irt had dealt with the parties, the land officer informed the court that their ora showed that the owner of the suit plot was Yohana Mlaponi The nary Court directed the parties to go to the land office and the matter >adjourned till 27/1/2010. The above position remained the same until on 2/8/2010 when the applicant, Joseph Mbuya filed an application for revision in the District Court of Masasi District vide Misc. Civil application no. 13 of 2010 where the District Court upon dealing with the matter made the following findings; .... After having seen the prayers of the applicant, the court has found that the applicant legally bought the house. The name of the seller is the same with the name of the owner of the said house. This proves that the seller was legal owner... The respondent Ngalipambone Mahita was aggrieved by the above findings and appealed in this court vide PC. Civil Appeal no.3 of 2010 and this court Lila, J. found inter - alia that the District Court order on revision, dispossessed the respondent their right over the suit plot without being given an opportunity to be heard contrary to the mandatory requirements of s ection 22(3) of the magistrate’s court Act, 1984 which provides that; .....In addition to the provision of subsection (2) of this section, no order shall be made in the exercise of the court’s revisional jurisdiction in any proceeding of a civil nature increasing any sum awarded or altering the rights of any party to his detriment [other than an order quashing proceedings in a lower court or an order reducing any award in excess of the jurisdiction or powers of lower court to the extent necessary to make it conform thereto] unless such party has been given an opportunity of being heard... [emphasis supplied] This court also found as a fact that in invoking its revisional powers, the District Court introduced a new issue to wit; The issue of ownership of the land, regard being had the fact that there was no sufficient material before it, and which was not an issue before the trial court. This court found therefore that the revisional proceedings before the District Court were conducted in complete disregard of the laws. Further more this court Lila, J. went on to declare the District Court proceedings and order null and void. Following the above decision by this court the Applicant has filed an application seeking leave to appeal to the Court of Appeal after being dissatisfied with the holding. The applicant also wants to convice this court that there is a point of law to be dealt with the Court of Appeal. I have duly considered the affidavit of the applicant and heard him viva voce the affidavit of the applicant which has twenty (20) grounds and his main complaint fall on the issue of ownership of land which this court clearly found that there is no sufficient material on the record regarding the issue of ownership of the said suit plot because the original dispute before the Primary court in probate matter of revision before the District Court and a subject matter of appeal in this court was not a Land case par excellence, but a probate cause. Therefore I think by and large that if the applicant still thinks that he is the owner of the suit plot and that the said suit plot should not form part of the deceased estate, he should go back to the special forum created for resolving ownership of land and establish ownership of the suit plot. It should be noted that even if we grant leave to appeal to the supreme court of appeal, there is nothing in the record which will help the Court of Appeal resolve the issue of ownership of land which the applicant has grounded. In the upshot and for the reasons stated I will not grant the applicant leave to appeal to the Court of Appeal as there is no point of law to be referred. Therefore denie him and dismiss the application with cost. Judge ' 12/7/2012 Delivered today in the presence of both parties. \nwi~ S. Mipawa, Judge \ 12/7/2012 Further right explained. Judge 12/7/2012