juma mohamed baajuni vs said juma jasho 2020 tzhclandd 3917 7 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO.112 OF 2019 (Arising from the decision of the High Court of the United Republic of Tanzania, Land Division at Dar Es Salaam, videLandAppealNo.il of 2018, originating from Land Application No.45 of 2014, of the Kilombero District Land and Housing Tribunal) JUMA MOHAMED BAAJUNI................................................ APPLICANT Versus SAID JUMA JASHO....................................................... RESPONDENT RULING OPIYO, J: The applicant is seeking for a leave to appeal to the Court of Appeal of Tanzania against the judgement of Honourable Makuru J, (as she then was) dated 20th of July 2017, in Land Appeal No.61 of 2017. The application is brought under section 47(1) of the Land Court Disputes Courts Act, Cap 216, and R.E 2002. It was also accompanied by the affidavit of the applicant. The factual background giving rise to the present application is to the effect that, the respondent instituted a Land case at Kilombero District Land and Housing Tribunal for Kilombero District, against the applicant, vide Land Application No.45 of 2014. The judgment of the tribunal came in favour of the respondent and was delivered on 14th December, 2017. Dissatisfied with the decision of the trial tribunal, the applicant unsuccessfully sought an appeal before this Court; vide Land Appeal No. 11 of 2017. Aggrieved with the decision of this Court given against his appeal above named, the i applicant now seeks leave to challenge the said decision at the Court of Appeal of Tanzania. The application was disposed by way of written submissions. Both parties appeared in person. Submitting for the application, the applicant argued that, he wishes the Court of Appeal to determine the legal and factual issues which the applicant raised at the 1st appellate court. The High court failed to see the fact that the respondent sued the applicant in his personal capacity instead of suing as an administrator of the estate of the late Isiaka as stated in the records. Also the applicant wants the Court of appeal to look into the adverse possession issue which was discussed by the District Land and Housing Tribunal for Kilombero. The respondent replied firmly to the submissions by maintaining that this application should be dismissed for lack of merits. There are neither legal no' factual issues worth of being determined by the Court of Appeal of Tanzania as the High Court decided the appeal correctly. I have considered the parties' submissions for and against the application as well as the affidavit and counter affidavit from both of them. The rules are settled that, an application for leave to appeal to the Court of Appeal will be allowed if the court has considered the rights of parties against who the decision of court which the intended appeal is sought. Secondly, the court has satisfied itself whether the said decision is appealable and lastly, there must be valid grounds of appeal as opposed to chance of success that the party wishes to appeal (see David Naburi as the Administrator of the estate of the late Maeda Naburi versus Stephen Sangu, Misc. Land 2 % Application No. 960 of 2017, High Court of Tanzania, Land Division, DSM, (unreported). In this application, the applicant has met all these three requirements. Firstly, the impugned judgment of Makuru, J in the land Appeal Case No 11/2018 is appealable, and therefore the applicant needs to be given another forum to argue his case as it is his constitutional right which cannot be lightly denied by this court. Also, the applicant has valid grounds for her intended appeal; determination whether the court can hold the property as forming estate of a certain deceased in absence of administrator of his/her estate being sued or suing. In my view, on that ground the applicant deserves a platform to present his grounds and a determination for or against him be made by a higher court. In this stage, only the Court of Appeal of Tanzania is competent to hear him in his intended course. In the end, the leave is hereby granted. Each party shall bear his or her own costs. It is so ordered. M. P. OPIYO, JUDGE 7/12/2020 3