maria oska another vs anjelina john oska 2019 tzhclandd 59 6 september 2019

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC LAND APPLICATION NO. 726 OF 2018 (Arising from Misc. Land Appeal No. 63 of 2017) MARIA O SKA.......................................................... 1st APPLICANT CASIAN OSKA......................................... ......... . 2nd APPLICANT VERSUS ANGELINA JOHN O SK A......................................... RESPONDENT RULING Date o f Last Order: 23/08/2019 Date o f Ruling: 06/09/2019 MALLABA, J The two applicants, Maria Oska and Casian Oska, intend to appeal to the Court of Appeal of Tanzania, against the decision of this court, in Miscellaneous Land Case Appeal No. 63 of 2017 delivered on 28/9/2018. Page 1 o f 4 The matter that was before this court had its origin in the Ward Tribunal. Indeed, a person wishing or intending to appeal against such decision has to seek and obtain a certificate of this court that the intended appeal involves points of law. This is the application which the applicants are now making before this court. Even after proof that the respondent was served, he neither filed a counter­ affidavit nor appeared in court. This court ordered to proceed with hearing of the application exparte, that is, in the absence of the respondent. This court ordered the applicants to argue the application by way of written submissions. The applicants submitted that, they raised three points in their affidavit in support of their application. They claim that the same are points of law and in that regard they prayed to this court to certify the same to be points of law in terms of section 57 (2) of the Land Disputes Courts Act (Cap 216 RE 2002). The points are: (i) Whether the respondent, being a grandchild, m ay lay an intestate claim to the assets o f her deceased grandm other: Page 2 o f 4 ( ii) W hether it is legally proper to declare the respondent the law ful owner o f the disputed land, after apparently waiving her burden o f proving such m aterial fact on the balance o f probability; and (iii) W hether an appellate tribunal m ay refuse to consider grounds appeal. The first point is whether a grandchild in a matter before the court is qualified to inherit from his grandfather. This court is of a considered view that, the answer to the issue is factual. It does not qualify as a point of law. The second point may be resolved by relying on the evidence on record. As such, this is also factual and not a point of law. As regards the 3rd point, whether or not a court on appeal can refuse to consider a ground of appeal raised by an appellant, the same is indeed a point of law. Considering the findings as above, this court generally finds that, the 3rd point raised in paragraph 6 of the affidavit in support of the application and exemplified at page 2 of the applicant's written submissions, whether an appellate tribunal may refuse to consider a ground of appeal, is indeed a point of law. This court, therefore, certifies the same as a point of law deserving to be considered by the Court of Appeal accordingly. Page 3 of 4 No order as to costs. It is ordered accordingly. 06/09/2019 Page 4 o f 4