juliana martini others vs uru east mruwia joint venture co operative society ltd 2023 tzca 17415 17 july 2023

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI fCORAM: KOROSSO. 3.A.. KIHWELO, J.A., And RUMANYIKA. J.A.1 ! CIVIL APPLICATION NO. 449/05 OF 2021 JULIANA MARTINI .... ................................................... 1st APPLICANT SELINA MARTINI................ ..............................................2nd APPLICANT LEVINA MARTINI.............................................................. 3rd APPLICANT VERSUS URU EAST MRUWIA JOINT VENTURE CO-OPERATIVE SOCIETY LTD ............................................RESPONDENT (Application for the second bite leave to appeal to the Court of Appeal of Tanzania against the decision of the Resident Magistrates Court, at Moshi) (Mazenao, PRM Ext.J^ Dated the 24th day of September 2020 in Land Appeal No. 2 of 2019 RULING OF THE COURT 10th & 17th July, 2023 KOROSSO. J.A.: The first application by the applicants for leave to appeal to this Court was refused by the Resident Magistrates Court of Moshi (Maziku, PRM Ext. J.) sitting at Moshi in Land Application No. 14 of 2020 dated 30/4/2021. The purpose of the leave to appeal was to assail the decision of the Resident Magistrates Court (Mazengo, PRM Ext. J.) i delivered on 24/9/2020 which dismissed the appeal from the District Land and Housing Tribunal (DLHT) in Land Application No. 198 of 2016. To contextualize what gave rise to the instant application, a brief background is necessary, albeit in brief. The respondent had filed a suit against the applicants in the District Land and Housing Tribunal for Moshi at Moshi (DLHT) with various claims including trespassing by the respondent on a piece of land measuring one and a half acres which allegedly is part of Kilimanjaro Estate with CT 17428 Farm No. 167/1 comprising 152 acres located at Hai Mashariki Ward, Moshi Rural District, Kilimanjaro Region, valued at Tshs. 40,000,000/= (disputed land). According to the respondent, the applicants had constructed buildings in the suit land despite being warned not to do so by the village authorities. Efforts to resolve the matter had run futile which led the Board of Directors for the respondent to initiate legal action against the applicants. In the said suit the respondents sought the following reliefs: a declaration that the one-and-a-half-acre piece of land is part of Kilimanjaro Estate Property; a declaration that the applicants (then the respondents) are trespassers on the respondents' (then the applicants) land and that they be ordered to vacate the same with immediate effect; the applicants pay Tshs. 10,000,000/= being damages for trespass; costs; and any other reliefs found fit to grant. The DLHT judgment was in favour of the respondents. The applicant's first appeal, Land Appeal No. 2 of 2019 was heard and determined in the Resident Magistrate's Court (Mazengo, PRM Ext. J.) and dismissed as alluded to above. Dissatisfied by the decision of the Resident Magistrate's Court with extended Jurisdiction on appeal, the applicant lodged a notice of appeal on 28/09/2020. As the appeal to the Court in the matter lies with the leave of the High Court, the applicant filed the requisite application to seek that leave which was dismissed on 30/4/2021 as alluded to above. The instant application, a second bite of the sought leave is lodged by way of notice of motion under rules 45(b), 48 and 49(1) and (3) of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is supported by an affidavit deposed by Lengai Nelson Merinyo, learned advocate duly instructed by the applicant. It is resisted by an affidavit in reply deposed by Faustin M. B. Materu, an advocate instructed by the respondent. 3 In underpinning the application, the applicant has raised four issues that necessitate consideration of the Court for his intended appeal as follows: 1. Whether the map, exhibit P.3 tendered by the respondent is the map registered for C. T. No. 17438. 2. Whether the land in dispute is part o f the land in C. T No. 17428. 3. Whether it was proper for the appellate court to ignore the opinion o f the assessors as the Tribunal did simply because the Chairperson has powers to depart from their opinion regardless o f the weight o f reasons supplied. 4. Whether it was proper for the appellate court to disallow additional evidence on allegations o f an afterthought without considering the interest o fjustice as far as section 88(1) o f the Land Registration Act, is concerned. When the application was placed for hearing before us on 10/7/2023, the applicants were represented by Mr. Lengai Nelson Merinyo, learned Advocate and the respondent had the services of Mr. Faustin B. Materu, learned Advocate. The applicant and the respondent through their counsel had earlier lodged written submissions in support and against the application respectively, in terms of rules 106 (1) of the Rules, which were fully adopted by the learned counsel at the hearing. Mr. Merinyo's submission drawn from both oral and written submissions, commenced by pointing out that leave to appeal is a legal requirement in terms of section 47 (2) of the Land Disputes Courts Act, Cap 216 (the Land Disputes Act), hence the present application. Expounding on the first ground, he contended that the map which was admitted as exhibit P.3 is not a map registered for CT No. 17428 and has no plan registration number showing that it was registered under CT No. 17428. According to him, the Court's take on the issue is important to clarify the issue left hanging by the decision in Land Appeal No. 2 of 2019 since plan No. 13917 was never brought into evidence and the one tendered by the respondent left a lot to be desired. The applicants' counsel's take is that the plan which was tendered, admitted into evidence, and relied upon in the determination of the suit by the trial tribunal and the first appellate court had no registration number. Apart from that, he contended that the respective Title deed identified its appended plan and thus it ought to be registered as plan No. 13917. According to him, the absence of any explanation given by the respondent witnesses as to why the tendered map has no registration number together with not knowing who inserted a handwritten number in the tendered plan left many unanswered 5 questions, which, he asserted, entitled the first appellate court to re­ evaluate the evidence carefully, which unfortunately, was not done. He argued that the failure of the first appellate court to do the needfut occasioned injustice and it thus prompts invoking rule 36(1) of the Rules to enable the appeal to come before the Court. As regards the second ground, he argued that the issue of whether the land in dispute is part of CT 17428 is supported by the fact that there was no registered map for CT 17428 tendered into evidence to show that the disputed land borders the land in CT 17428 or that it is within that land. He argued that section 88(1) of the Land Registration Act, Cap. 334 (land Registration Act) is applicable. The learned counsel for the applicants submitted further that, there is neither a connection between the tendered plan and the CT 17428 nor any connection between CT 17428 and the disputed land and that this fact is amplified by the fact that the respondents' pleadings are silent on whether CT No. 17428 is adjacent to the suit land in any side. The third issue put forward by the learned counsel for the applicants to move the Court to grant the leave sought relates to the evidence gathered during the visit of the locus in quo done at the instance of the parties. He contended that the findings of the said visit by those who 6 took part are clear and they seem not to reflect what can be found in the contents of the survey found in the admitted exhibit P3. He maintained that the findings at the locus in quo led to the views expressed by the assessors concerning the suit land. The learned counsel argued that the Court needs to be versed in the reasons the Chairman of the Tribunal departed from the views of the assessors, understanding that section 24 of the Land Disputes Act requires the Tribunal to consider the opinions of the assessors notwithstanding the fact that such opinions should not bind the Tribunal's decision but where the Chairman differs with the assessors' opinions, he must provide reasons for such departure. He argued that although the powers of the Chairman to depart from such views is discretionary even though such discretion must be exercised judiciously and that, it is in the interest of justice for the Court to weigh whether the judicial discretion was properly exercised by the Chairman in the present case. The fourth issue we were invited to consider by the applicant's counsel is the need for the Court to seek additional evidence in the interest of justice so that it becomes versed with important evidence that is missing, such as the genuinely approved map registered and appended in CT No. 17428 available at the Land Registry Moshi. The learned counsel challenged the point of view held by the first appellate court on this issue on the prayer for additional evidence that it was an afterthought. He argued that given the circumstances of the case, the interest of justice demanded that additional evidence be sought from PW2 and PW3 from the Moshi Land Registry not called at the trial be heard to clarify the contents of the map and the survey plan relevant to the determination of the issue before the court regarding the disputed land. To reinforce his argument, the learned counsel cited the case of Rutagatina C. L. v. The Advocates Committee and Clevery Mtingo Ngalapa, Civil Application No 98 of 2010 (unreported) where the decision in the British Broadcasting Corporation v. Eric Sikujua Ng'maryo, Civil Application No. 138 of 2004 (unreported) was considered. He contended that the Court be guided by the cited decision and find that the applicant has raised issues of general importance and arguable grounds to warrant the sought leave to be granted. Mr. Materu on the other hand commenced with prayer to adopt the respondents' written submission and then proceeded to respond on the issue raised for the intended appeal grounding the application. On whether exhibit P3 involves the disputed land, he argued that the first 8 appellate court thoroughly discussed the issue and analyzed the evidence of the witnesses who testified and reached its findings therefore, there is nothing further or an error in the process to be seen as arguable requiring intervention of the Court. He implored the Court to find that the applicants have failed to show arguable points of law to warrant grant of the prayers sought for the following reasons: one, on the raised concern on non-consideration of the assessors' opinion by the DLHT Chairman, Mr. Materu contended that as per the relevant law, the Chairman of DLHT is not bound by the assessors' views thus there is nothing further that the Court can address to warrant a grant of leave to appeal to the applicants. Two, that the evidence adduced in the trial court was sufficient to dispose of the case on trial and first appeal and that the applicants had ample time to call any relevant witnesses to testify for any issue related to the disputed land if they so required. He further argued that failure on their part to call relevant evidence should not lead the Court to find the prayer for additional evidence as an arguable point of appeal since it is just an afterthought and should not exercise the mind of the Court. He concluded with a prayer for the application to be dismissed with costs. The rejoinder by the applicants' counsel was brief, reiterating his submission in chief and his prayer for the application to be allowed with costs. We have subjected the contending arguments of the parties to this application to the scrutiny they deserve. Certainly, the law under Rule 47(2) of the Land Disputes Act, the High Court, and the Court have concurrent jurisdiction in applications for leave to appeal to the Court against decisions of the High Court or Resident Magistrates' Court with extended jurisdiction. Under rule 45(1) of the Rules, a party dissatisfied with the decision of the High Court refusing to grant leave to appeal to the Court may apply to this Court as a second bite, the rule states: "In civil matters: - (a) ....N/A (b) where an appeal lies with the leave o f the Court, application for leave shall be made in the manner prescribed in rules 49 and 50 and within fourteen days o f the decision against which it is desired to appeal or, where the application for leave to appeal has been made to the High Court and refused, within fourteen days o f that refusal..." 10 Indeed, in view of the above legal position, in the instant application, having been refused leave to appeal in the Resident Magistrates' Court exercising its extended jurisdiction, the application is competently before this Court, a fact not contended by the respondent's counsel. The Court has had an opportunity to deliberate on factors to consider when dealing with applications for leave to appeal to the Court. In the case of British Broadcasting Corporation (supra), a single Justice of the Court made reference to a decision of an English case Buckle v. Holmes (1926) All ER Rep. 90 and held that: "...Needless to say, leave to appeal is not automatic. It is within the discretion o f the court to grant or refuse leave. The discretion must, however, be judiciously exercised and on the materials before the court. As a matter of general principle, leave to appeal will be granted where the grounds o f appeal raise issues o f general importance or a novel point of law or where the grounds show a prima facie or arguable appeal.." [Emphasis Added]. Similarly, in the case of Sango Bay Estates Ltd and Others v. Dresdner Bank [1971] EA 17, the defunct Court of Appeal in Eastern Africa on the same issue, held that: li "Leave to appeal from an order in civil proceedings will normally be granted where prima facie, it appears that there are grounds o f appeal which merit serious judicial consideration." In the case of MS. Airport Properties Ltd v. The Registrar of Titles & Another, Civil Application No. 389/17 of 2020 (unreported) we stated: - "It is trite law that in an application for leave the applicant must demonstrate that there are some arguable points o f law or matters o f general importance emanating from the impugned decision to convince the Court to exercise its judicious discretion to grant it" What we gather from the above excerpts is that when exercising its discretion on whether or not to grant leave, the Court should consider the significance of the intended point of law or fact where a prima facie or arguable appeal grounds have been set out in the application. Applying the above-guiding points in the present application, we are of the view that the four grounds raised by the applicants cannot be labeled as frivolous, vexatious, or useless since they raise arguable issues. 12 We are thus of the firm view that in the application before us, the issues averred particularly paragraph 7 (b), (c) and (d) of the affidavit supporting the notice of motion as issues for the intended appeal, prima facie, raise arguable grounds and serious questions that merit judicial consideration by the Court. In the end, we grant leave to appeal to the Court against the impugned decision as prayed. Under the circumstances, we make no orders as to costs. DATED at MOSHI this 15th day of July, 2023. W. B. KOROSSO JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Ruling delivered this 17th day of July, 2023 in the presence of Mr. Faustin Materu, learned counsel for the Respondent also holding brief of Mr. Lengai Merinyo, learned counsel for the Applicants, 2nd Applicant in person and Mr. Mathias J. Akaro, Chairman of the Respondent, is hereby certified_as a true copy of the original. A.L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 13