MISC LAND APPLICATION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA {KIGOMA SUB-REGISTRY)

AT KIGOMA MISCELLANEOUS LAND APPLICATION NO. 59 OF 2024 (Arising from High Court Misc. Land Appeal No. 6/2023 C/0 District Land and Housing Tribunal for Kigoma at Kigoma, Land appeal no. 67 /2022 originating from Land Dispute No. 9/2021, Ilagala Ward Tribunal)

KIZA HUSENI MKOMBA APPLICANT

VERSUS

KUISHIWA RAJABU SUNGURA RESPONDENT

RULING Date: 30/05 & 07/08/2024 NKWABI, J.: The chamber summons which has been brought under the provisions of section 47(2) of the Land Disputes Courts Act, No. 2/2002 Cap. 216 R.E. 2019 as amended by section 47 (c) of the Legal Sector Laws (Miscellaneous Amendment) Act No. 11/2023 and any other enabling provisions of the law is containing the prayers that: 1. That this honourable Court be pleased to certify that there are points of law to be determined by the Court of Appeal of Tanzania against the whole decision of the High Court of Tanzania at Kigoma 1 sub-registry in Miscellaneous Land Appeal No. 6 of 2023 dated 27th November, 2023.

11. Costs of this application be in the course.

111. Any other relief(s) deemed just and fit to be granted to the applicant. The background to this application is that the respondent instituted a land dispute in Ilagala ward tribunal against the applicant. She won the land dispute. The ward tribunal declared her the owner of the piece of land in dispute. It ordered compensation at T.shs 1,500,000/= in favour of the respondent. The decision was handed down in March 2022. The applicant successfully appealed to the District Land and Housing Tribunal for Kigoma. The first appellate tribunal quashed the proceedings of the trial tribunal and advised the parties to file a fresh land suit which would include necessary party. The reason for that decision was failure to join the village council which, the first appellate tribunal was satisfied that was a necessary party. The respondent was aggrieved and appealed to the High Court which overturned the decision of the first appellate tribunal whereby it restored the 2 verdict of the trial tribunal. In doing so, this Court faulted the first appellate tribunal for it ought to have ordered for a retrial because non-joinder of a party does not defeat a suit. Moreso, it did not deem the village council was a necessary party. The matters that are craved to be certified as points of law could be seen in the 6th paragraph in the affidavit in support of the application. Therein, I am called upon

to certify the following points of law: 1. Whether in law, the High Court, the second appellate court was legally right to restore and confirm the decision of the Ward Tribunal of Ilagala that entered its judgment on 31/03/2022 in favour of the respondent while the said tribunal had no jurisdiction as per section 45 of the Written Laws (Miscellaneous Amendments) Act No. 3 of 2021. ii. Whether in the law, High Court, as second appellate court was legally correct to disregard the issue of joining the allocating authority to wit Ilagala village council. iii. Whether the High Court ,as second appellate court, grossly erred in law and facts when misdirected itself in re-evaluating the evidence of the applicant on the issues of ownership by one Merina 3 Gwimbugwa Mariam Balampama which it was raised for determination of the appeal without affording chances to parties. The respondent, in her counter-affidavit, vigorously opposed the application and averred that the application is lacking in merits. She averred that the amendment had not come into play when the matter was lodged in the trial tribunal. It was also argued that it was correct for the 2nd appellate Court to disregard the technical issue of non-joinder of the allocating body (Ilagala Village Council and that re-evaluation of evidence is not a point of law. She is urging the application be dismissed with costs for want of

points of law. The matter was ordered to be argued by way of written submissions. The applicant is represented by Mr. Silvester Damas Sogomba, learned counsel, who argued the application. The respondent had her written submission drawn by Ms. Diana Damson, also learned counsel. There was no rejoinder submission on the part of the applicant. In applications of this nature, there is ample guidance given by the Court of Appeal in Magige Nyamoyo Kisinja v Merania Mapambo Machiwa, Civil Appeal No. 87 of 2018, (unreported) where it was stressed that: 4 "... it is no wonder. in our settled opinion that before us both the appellant and the respondent conceded that what was certified by the High Court is not a point of law at all. In the arcumstences, we are settled that in the present appeal there is no point of law which has been certified by the High Court to deserve the attention of this Court. 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. H See also Dorina N. Mkumwa v Edwin David Hamis, Civil Appeal No. 53 of 2017, CAT (unreported) where it was underscored that: ''In land disputes, the High Court is the

final court on matters of fact The Legislature has taken this finality so seriously that it hes. under subsections (1) and (2) of section 47 of Cap. 216 [as amended by the Written Laws (Miscellaneous Amendments) 5 (No.3) Act 2018 Act No. 8 of 2018] imposed on- the intending appellant the statutory duty to obtain either leave or certificate on point oflaw before appealing to this Court. It is therefore self- evident that applications for Certificate of the High Court on points of law are serious applications. We are prepared to reiterate that certificates on points of law for appeals originating from Ward Tribunal 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 encl preferably in the High Court. On this stance/ we abide with our earlier unreported decision in TIMOTH AL VIN KAHOHO V. SALUM ADAM MFIKIRWA, CIVIL APPLICATION NO. 215 OF 2013 where we restated that a decision of the High Court refusing to grant a certificate on point of law under section 47(2) of Land Disputes Courts Act is final and no appeal against it lies to this Court." 6 I should state that both parties maintained their stances in submission for and against this application. I will start with the 2nd point which is whether in the law, High Court, as second appellate

court, was legally correct to disregard the issue of joining the allocating authority to wit Ilagala village council. It is pressed that there is no such point because the leaders testified to have allocated the land to the respondent and the Ilagala village council was not an indispensable party between the parties. It is added that the absence thereof would not affect the decree. I am aware that I am not supposed to make a decision that would appear to be determining the intended appeal. It suffices to state that due to a handful case laws, including the case of Abdullatif Mohamed v. Mahboob Yusuf Othman & Another, Civil Revision No. 6 of 2017, this is a legal point worth certification for determination by the Court of appeal. Concerning the 3rd point which is whether the High Court, as second appellate court, grossly erred in law and facts when misdirected itself in re- evaluating the evidence of the applicant on the issues of ownership by one Merina Gwimbugwa Mariam Balampama which it was raised for 7 determination of the appeal without affording chances to parties. This point was abandoned. Yet, Mr. Sogomba purportedly introduced an alternative one which is whether the matter was properly determined or dealt without administrator of the estate o the land Merina Gwimbugwa who was alleged to be the legal owner of the said suit land. He urged that it be considered for

certification as legal point. He submitted at length. Ms. Damson urged this Court not to consider it because it was not listed in the affidavit and the parties are bound by their own pleadings. I agree. It is disregarded, because that purported point is not based on the affidavit in support of the application but mere submissions from the bar. Lastly, I consider the first point which is whether in law, the High Court, the second appellate court, was legally right to restore and confirm the decision of the Ward Tribunal of Ilagala that entered its judgment on 31/03/2022 in favour of the respondent while the said tribunal had no jurisdiction as per section 45 of the Written Laws (Miscellaneous Amendments) Act No. 3 of 2021. 8 This is indeed a pure point of law. I do not hesitate to certify it as a legal point worth of consideration by the Court of Appeal of Tanzania. In deciding this application for certification of points of law, I hope, I have treaded within the guidance given in The Regional Manager - TANROADS Lindi v. DB Shapriya & Company Ltd, Civil Application No. 29 of 2012, CAT, (unreported) in which it was stated that: ''It is now settled that a Court hearing an application should restrain from considering issues that are to be dealt with by the appellate Court This is so in order to avoid making decisions on substantive issues before the appeal itself is heard ... " In fine, this application is merited, it is granted as stated above. It is so ordered. DATED at KIGOMA this 7th day of August, 2024 iJVk~~, J. F. NKWABI

JUDGE 9