kadodo ibrahim mwanyoka and another vs omary salum mahimbi 2020 tzhclandd 9 11 march 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC.LAND APPLICATION NO.5 77 OF 2018 (Originating in Land Appeal No. 112 o f 2016) KADODO IBRAHIM MWANYOKA...................... 1st APPPLICANT MWALAMI ALLY............... ................................ 2nd APPLICANT VERSUS OMARY SALUM MAHIMBI.................................. RESPONDENT RULING S.M. MAGHIMBI, J: This is ruling in respect of the Application for leave to appeal to the Court of Appeal against the judgment of this Court in Land Appeal No. 112 of 2016 delivered on 10th August 2018. The application is made under the provisions of Section 47 (1) of the Land Disputes Courts Act, Cap. 216 R.E 2002 ("The Act'7) and supported by the Affidavit of Frank Kilian, learned Counsel representing the applicant dated 24/08/2018. The application has been countered for through the Counter Affidavit of Omary Salum Mahimbi "the Respondent". The application was argued by way of written submission. In this court, the Applicants were represented by Advocate Frank Kilian while the respondent appeared in person and unrepresented. In his submissions to support the application, Mr. Killian argued that the material facts of the Case recorded by Trial tribunal and its decision differs i from the fact in issue recorded by High Court Judge. That the decision of the High Court Judge was based on abandonment of the Farm which disregarded the issue of ownership which was never determined hence resulting to an erroneous decision. In reply, the respondent submitted that the application at hand raises no contentious points of law for determination by the Court of Appeal. He argued that the respondent is the lawful owner of the disputed land before it was illegally confiscated by the village and allocating the same to the 1st applicant without following procedure and without compensation, which is contrary to the law. The applicant didn't file any rejoinder. Having thoroughly perused the records of this application, the position of the law in Tanzania is clear and settled that, in considering an Application for leave to appeal to the Court of Appeal the main issue which the Court is supposed to examine is whether there is a point of law involved in the application fit for the consideration by the Court of Appeal. In the cases of Venance Msendo V. Attorney General & TRA, Miscellaneous Civil Case No. 37 of 2001 (unreported), the Court of Appeal held that:- " Leave to appeal should be granted in matters o f public importance and serious issues o f misdirection or non-direction likely to result in a failure o fjustice." Furthermore, in the case of Sango Bay Estates Ltd & Others V Dresdner Bank [1974] EA 17, the defunct East African Court of Appeal authoritatively held that:- "Leave to appeal from an order in civil proceedings will normally be 2 granted where prima facie it appears that there are grounds o f appeal which merit seriousjudicial consideration." From the decisions above, the High Court has discretion to grant leave to appeal to the Court of Appeal, on establishment of prima facie ground which merit serious judicial consideration. Now, guided by the above principles and authorities it is clear that in this Application, the applicant has to show that there is point of law or mixed law and fact, which requires further consideration by the Court of Appeal. As such, the important issue for this Court to consider is whether there is a point of law-involved fit for the consideration by the Court of Appeal. In the instant Application under scrutiny, Mr. Kilan has clearly indicated in his Affidavit that the issues which they want the Court of Appeal to examine are:- (a) Whether or not the two sale agreement directly connected to the land in dispute (b) Whether or not the High Court Judge was legally correct to raise suo motto the issue o f absence o f proper notice in revocation o f ownership o f farm in dispute and use the same to declare the respondent lawful owner. (c) Whether it is proper for the Court to raise issue o fproper notice suo motto without giving parties chances o f being heard. Considering the above points raised by the applicants, it is my considered view that the same suffice the attention of the highest court of the land bearing in mind that the Judgment and Decree of this court are appealable to the Court of Appeal. Under these circumstances, I accordingly grant the 3 application and hence the applicant is granted leave to appeal to the Court of Appeal against the decision of this court in Land Appeal No. 112/2016. I make no order as to costs. Application Allowed Dated at Dar es Salaam this 11th day of March 2020. S.ra MAGHIMBI JUDGE 4