19980304 TZHC Dar es Salaam2

. .,, ' IN THE HIGH COURT OF TANZANIA DAR ES S1\1.,AAl,, DISTRICT REGISTRY AT DAR ES SALAAf-'1 FG CIVIL AFfEAL N0.143 OF 1994 ~LIAJ\JA f'HILIFO KALUl"lWAGA ••••••••• AF 1--ELLANT VERSUS • TECLA I•lZAN3 RESFONDENT RU .L I N G BUBESHI, J. • This application is for extension of tiH1e for which to issue notice of appeal, seek leave to appeal and stay of e:ns~'1\\g,n ,l?e,~F: ~he_r~c:.t,~rmination of thi~, applicatio~ and _/ leave is oeing sought to appeal against tl:le _entire decision o~ this court (1V1aina, J as he then, was) and the a· • ,' I ·r :- grant.of · , certificate ·1 : (' r that the intended appeal .. ,. involves . ,·::_ m.i,.xed point~(~:t ,' .. ·, ;"'. .. law· and fact. · ,,,Whi,l.e this court .would J.'::· . . have no objection to the . r; ex,tension of time within which to file notice and the ncessary ) . eave to appeal. This court is not satisfied that there is \ a point of mixed law and fact worthy of certification for the matter to be heard by the Court of Appeal. According to Mr. J\~gare, learned counsel advocating for the appellant, the learned counsel faulted the learned judge for having decided that the appellant was a trespasser. He was of the view that the principle of adverse possession applied in favour of the appellant and the learned judge erred not to consider it. Mr. Mgare also criticized the l(;!arned judge for not considering the grounds of app~.al as filed. ; Having considered ..the facts of this case, I think the : learned counsel is, ~i th res'pect; confusing issues. The .disputed . between parties . . is grounded on the part of the land .~:,hich the :a,},:.,'p1icant has extended without consent of . ~ :: . .~'. the respondent. She is thi:ref ore a trespasser in respect of that piece of land to which she has encroached onto,. built another house and planted per1nahe:nt trees • • . . .:.. /2 The apppllant/ applicant the court. found, was' entitled to that piece of land freely· given to . . . by'· the ,respondent her but not the extra piece of larid.. I do not see where. the. learned judge faulted. I an1 satisfied therefore that there is no point of mixed law and fact for certification ' '. by this court, Application for leave .is herewith rejected. · Deli v'ered before Parties