lameck mwita vssuzan chiteji and another 2021 tzhclandd 689 10 september 2021

IN HE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 18 OF 2021 LAMECK MWITA........................................... APPLICANT VERSUS SUZAN C HITE J1.................................................. 1st RESPONDENT MASOUD HASHIM NAYOPA.............................. 2nd RESPONDENT RULING Date of I ast Order: 27/8/2021 Date of Ruling: 10/9/2021 T.N. MWENEGOHA, J The applicant in this case has filled a chamber application supported by his sworn affidavit subject to provisions under Section 5(1) of the Appellate Jurisdiction Act, Cap 141 R.E 2002 together with other enabling provisions of the law. The apolicant prays for leave of this Court to appeal to Court of Appeal against judgment ana decree of Lana Appeal No. 56 of 2019 wnich was delivered on 16th December, 2020. Respondents were served with summons to appear, however the 2nd respondent did not enter appearance even after order for service by publication hence the case was heard exparte on his part. The application was heard tnrougn written submissions. Tne applicant was represented by Mr Juma Nassoro, learned advocate. The 1st respondent aid not file her submissions and therefore this case is heard on merit on the part of the applicant's submissions. In his submission, Mr Nassoro stated that the aophcant is seeking leave of this Court to appeal to Court of Appeal of Tanzania under Section 5(i)(c) of the Appellate Jurisdiction Act, Cap 141, R.E 2002, to appeal against the judgment and decree of Land Appeai No. 56 of 2019 dated 16th December 2020. That the application is supported by an affidavit of the applicant which has not been contested by the respondents. He submitted further that for application for leave the aoplicant has first filed not>ce of appeal to Court of Appeal which he has already done and second that the applicant must show there are contentious or arguable points for consideration or determination by Court of Appeal. He cited the case of LAEMTHONG RICE COMPANY LTD VS PRINCIPAL SECRETARY, MINISTRY OF FINANCE (2002) TL.R 389, where the Court of Appeal ruled that; "What is required under Section 5(1)(c) is leave of the High Court of the Court ofAppeal, it matters not how that leave is obtained but it would all depend on the circumstances of each case." He further cited the case of SAID RAMADHANI MN YANG A VS ABDALLAH SALEHE (1996) TLR 74, the Coutt held that; "In conclusion, I am of the considereo view that the three arguments raise contentious issues of law. Hence this is a fit case for further consideration by the Court ofAopeal. rhe application is therefore grantee as craved." He submitted that the points raised in paragraph 3 (a)(b)(c)(a)(e)(f) of tne affidavit of the applicant are sufficient contentious matters fit for consideration or determination by the Court of Appeal against the impugned decision. Since there was no reply to the applicant's submission by the 1st respondent I will now go straight to the merit of this application. This application is made under Section 5(l)(c) of the Appellate Jurisdiction Act. 5,-(l) In civil proceedings, except where any other written law for the time being in force provides otherwise, an appeal shall He to the Court ofAppeal- la)L. (b)..................... (c) with the leave of the High Court or ot the Court of Appeal, against every other decree, order, judgment, decision or finding of the High Court. On wnether the intended appeal has arguable points, the applicant has listed down the following points:- (a) That, the decision has the effect of giving effect void and null the sale agreement exhibit Pl suffered from uncertainty(sic). (b) That, the decision did not consider the effect of contradicting evidences of PW1 and PW2. (c) That, the decision is erroneous for want of capacity of tne vendor of the suit plot to the 1st respondent. (d) That, the decision is erroneous in declaring the 1st respondent without the vendor giving evidence of proof of title to pass to the 1st respondent(sic). (e) That, the decision was made based on irrelevant issues to decide the appeal before it. (f) That, the assessors did not make their opinion. At the face of it, they are arguable points which can be clearly evaluated upon submissions at the Court of Appeal. I am not hesitant to allow this application. I hereby grant leave to appeal to Couit of Appeal against decision of the High Court Land Division in Land Appeal No. 56 of 2019 dated 16th December, 2020. No order as to costs, Dated at Dar es Salaam this 10th day of September, 2021.