national bank of commerce ltd vs juvenary mugyabuso administrator of estate francis kaigwa frabcis kaigwa 2018 tzhclandd 463 17 august 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR-ES-SALAAM MISC. LAND APPLICATION NO. 832 OF 2017 NATIONAL BANK OF COMMERCE LIMITED...............................APPLICANT VERSUS JUVENARY MUGYABUSO (Administrator of Estate Francis Kaigwa and Francis Kaigwa)............................................................... RESPONDENT RULING P.M. KENTE. J:. By w ay of a Cham ber Summons, the applicant filed this application under section 47(1) of the Land Disputes Courts Act [Cap 216 RE 2002], is seeking the leave of this court to appeal to the Court of Appeal of Tanzania against the decision of this court dated 12thSeptember, 2017 in Land Appeal No. 83 of 2016. The application is supported by an affidavit deponed to by Mr. Gaspar Nyika, A dvocate. On the other hand, the application was opposed by the counter affidavit of Ms. Kato learned counsel for the respondent. Pursuant to the order of this court, the application was argued by w a y of written submissions. i In his submissions, Mr. Nyika maintained that, there are contentious issues of law which are worthy of determination by the Court of Appeal as stated under paragraph 9(i-iv) of the a p p lica n t’s affidavit. He added that, for the leave to appeal to the Court of Appeal to be granted, the applicant has to establish the following grounds/conditions 1) That there exists an arguable to be a d ju d ic a te d by the court o f Appeal. 2) That the grounds of a p p e a l raised contentious issues of law fit for consideration by the Court of Appeal. 3) The a p p e a l raises issue of general im portance or novel point o f law. To support this application, counsel for the applicant referred this court to the following cases of Rutaganita C.L. Vs. The Advocates Committees, Civil Application No. 98 of 2010 (unreported) where the Court of Appeal held that:- “As a matter of general principle , leave to a p p e al will be granted where the grounds of ap p e al raise issues of general importance or a novel point of law or where the grounds shows a prima facie or arguable a p p e a l” 2 In Civil Application No. 51 of 2007, Abubakar Ali Himid Vs. Edward Nyelusye it was held that while granting leave to a ppeal to the Court of Appeal, where there is an arguable appeal, there is a need for the Court of A ppeal to adjudicate upon the rival contentions of the parties, thus leave is granted in such circumstance. Moreover, Mr. Nyika referred to the case of Said Ramadwani Mnyanga Vs. Abdallah Salehe, [1996]TLR 74 where my sister (Hon. MunisiJ.) granted leave to appeal to the Court of A ppeal on the ground that the intended appeal raised contention issues of law and was a fit case for further consideration by the Court of Appeal. In the end Mr. Nyika implored this court to grant this application with costs. In reply, Ms. Kato learned counsel for the respondent submitted that there are no serious contentious issues of law worthy of consideration and determination by the Court of Appeal. She therefore prayed for this court to dismiss this application with costs. I have carefully gone through the averments contained in the affidavit in support of the application and at the same time, I have gone through the submission m ade by both counsel. In determining the merits or demerits of this application, I have in mind the case of Harban Haji Mosi and Another Vs. Omar Hilal Seif and Another [2001] TLR 409 at Pg 414 -415, where the Court of Appeal of Tanzania stated thus:- "Leave is grantable where the proposed a p p e al stands reasonable chances of success or where , but not necessarily , the proceedings as a whole reveal such disturbing features as to require the guidance of the Court of Appeal. The purpose of the provision is therefore to spare the court the specter of un meriting matters and to enable it to give adequate attention to cases of true public importance." In the instant application, the applicant has stated that the points of law which need to be determined by the Court of Appeal are found under paragraph 9(i-iv) of the affidavit where he has claim ed thus:- 4 i. That the appellate Judge erred in law in holding that the sale of the m o rtg a g e d property by the a p p lic a n t was null a n d void, while the validity of sale was not a m o n g the issues for determination before tribunal. ii. That the Appellate Judge erred in law in dealing with the a p pe llan t as the lawful owner of the property lo c a te d in Plot No. 364, Block E, Tegeta, while the ownership o f the respondent was not subject for determination before Tribunal. Hi. That the Appellate Judge erred in law in determining matters which were not part o f the issues before Tribunal. iv. That the Appellate Judge erred in law in shifting the burden of proof to the a pp lica nt while determining the validity of the sale of the m o rtg a g e d property while the said issue was not subject of determination before Tribunal for the a p p lic a n t to bring the evidence for proof. While I am mindful to the fa ct that, I am not in the position of an appellate court as to investigate into the correctness or otherwise of the decision of my fellow High Court Judge, I hold the view that the above raised points are sufficient enough to raise an arguable appeal, hence the need for the Court of Appeal to adjudicate upon the rival contentions by the parties to this dispute.. In the circumstances, I am satisfied that there is an arguable appeal, hence the need for the Court of Appeal to adjudicate upon the rival contentions between the parties. My position is fortified by the fact that the intended appeal will be of first instance and will enable the Highest court of this Land to re-examine the evidence on record and the applicable law and finally determine the applicant's grievances. I therefore grant leave to appeal to the applicant to appeal to the Court of Appeal as sought in the cham ber summons. Costs shall be in the cause. It is so ordered. Dated at Dar es salaam this 17th day of August, 2018. 6