mandevu nkwakuzi vs budia m lugaga 2022 tzhc 15228 12 december 2022

IN THE HIGH COURT OF TANZANIA TABORA DISTRICT REGISTRY AT TABORA MISC. LAND APPLICATION NO. 9 OF 2020 [Arising from Land Case Appeal No. 9 of 2018 of the High Court of Tanzania at Tabora, originating from Misc. Land Application No. 275 of 2017 of the District Land and Housing Tribunal for Tabora.] MANDEVU NKWAKUZI............................................ APPLICANT VERSUS BUDIA M. LUGAGA............................................ RESPONDENT RULING Date of Last Order: 02/12/2022 Date of Delivery: 12/12/2022 AMOUR S. KHAMIS, J. Mandevu Nkwakuzi filed this application seeking leave to appeal to the Court of Appeal against the decision of this Court in Land Appeal No. 09 of 2018. The application was made chamber summons under Section 47(1) of the Land Dispute Courts Act, Cap 216 R.E 2019, Section 5(l)(c) of the Appellate Jurisdiction Act, Cap 141 R.E 2019, and Rule 45(a) of the Tanzania Court of Appeal Rules, 2009. An affidavit sworn in by Mandevu Nkwakuzi, the applicant herein accompanied the chamber summons. In the said affidavit, the applicant stated that he was aggrieved by this Court when he was denied an extension of time to appeal against the decision of 1 the District Land and Housing Tribunal for Tabora in Misc. Land Application 275 of 2017 despite the fact he advanced good and sufficient reasons of illegality for non-joinder of a party. The applicant further averred that his intention to appeal to the Court of Appeal before which leave of this Court is needed is based on three major grounds that is: 1. Whether there are specifically mentioned reasons in law for extension of time, that resulted in the trial Tribunal denying the applicant extension of time yet he established good and sufficient reasons for being sick for a considerable time. 2. Whether the respondent herein had the locus standi to sue the applicant in the trial tribunal yet the disputed land belonged to his father Mbaruku Lugaga. 3. Whether the issue of illegality for non-joinder of parties can result to extension of time or not. There was no counter-affidavit filed by the respondent. The respondent also never showed up in court despite proof of service by the applicant on page 29 of Mwananchi Newspaper of 17th February 2021, ISSN NO. 0856-7573. By an order of this Court and as prayed by Mr. Hassan Kilingo, advocate for the applicant, the application proceeded exparte. During his oral submissions, Mr. Kilingo stated that this instant matter arose from the decision of Usinge Ward Tribunal in Land Case No. 4 of 2006 where the applicant herein didn’t come out victorious. 2 The applicant was aggrieved by the ward tribunal’s decision, and since he was time-barred, he filed an application for extension of time in the District Land and Housing Tribunal in Misc. Land Application No. 275 of 2017 to challenge the illegality of the decision of trial ward tribunal of Usinge. The applicant also complained on the non-joinder of parties and challenged the locus standi of the respondent in the ward tribunal. However, the District Land and Housing Tribunal dismissed the Misc. Land Application No. 275 of 2017. Aggrieved by the dismissal of the application, the applicant then appealed to this Court in Land Case Appeal No. 9 of 2018 but the same was also dismissed because it was devoid of merits since the applicant did not account for the period of his delay. Mr. Kilingo further averred that the applicant was aggrieved by the decision of this Court in Land Case Appeal No. 9 of 2018 hence this instant application where he seeks leave to appeal to the Court of Appeal. The learned advocate also prayed that the contents of the applicant’s affidavit be adopted as part of the submissions. He argued that paragraph 3 of the affidavit avers that the applicant was aggrieved by the trial tribunal’s decision and at paragraph 7, issues for consideration by the Court of Appeal were raised. Mr. Kilingo insisted that there are no specific reasons for extension of time in Tanzania, the reasons vary from one case to another. 3 The applicant’s main argument was whether the respondent had locus to sue as the said disputed land belonged to his father and he was expected to have letters of administration so that he could prosecute on behalf of his father. The learned advocate concluded by stating that the questions raised in the applicant’s affidavit and the submissions herein will be well treated by the Court of Appeal therefore, he prays for this Court to grant the application. Having keenly perused the applicant’s documents and considering Mr. Kilingo’s submissions, the main issue for consideration is whether the applicant has advanced points of law and grounds to warrant this Court grant him leave to appeal to the Court of Appeal. It is a trite law that granting leave to appeal to the Court of Appeal is a discretion of this Court and in order for it to do so, the applicant must advance points of law to be determined by the Court of Appeal. This requirement has been clearly provided for in the case of BRITISH BROADCASTING CORPORATION V. ERIC SIKUJUA NGAMARYO, CIVIL APPLICATION NO. 133 OF 2004 (unreported) reiterated this principle thus: “Needless to say, leave to appeal is not automatic. It is within the discretion of the Court to grant or refuse leave. The discretion must however be judiciously exercised on the materials before the Court. As a matter of general principle, leave to appeal will be granted where the grounds of appeal raise an issue of general importance 4 or a novel point of law or where the grounds show a prima facie or arguable appeal. ” From the applicant’s affidavit and on strength of the submissions by his advocate, I noticed that there is a point of law that need be addressed by the Court of Appeal, namely; whether the respondent had locus standi to sue the appellant in the ward tribunal based on the fact that the disputed land allegedly belonged to his father, Mbaruku Lugaga. In the upshot, I grant the application as prayed. The applicant shall file his appeal to the Court of Appeal within the Mchele advocate, holding brief of Mr. Hassan Kilingo advocate for 5