nyambarya warati administrator of the estate of warati nyambarya vs charles kilenga 2023 tzhc 21628 6 october 2023

IN THE HIGH COURT OF TANZANIA

MUSOMA DISTRICT REGISTRY

AT MUSOMA MISC. LAND APPLICATION NO. 63 OF 2023 (Arising from Land Appeal No. 17 of2022 in the High Court of Tanzania at Musoma (F. H. MahimbaH J.) Originating from Land Application No. 140 of 2019 at District Land and Housing Tribunal for Mara at Musoma) NYAMBARYA WARATI................................................................... APPLICANT (Administrator of the Estate of WARATI NYAMBARYA)

VERSUS CHARLES KILENGA................................................................ RESPONDENT

RULING 21st September & 6th October, 2023 M, L, KO MBA, J.: This application has been filed by way of chamber summons under Section 47 (2) of the Land Disputes Courts Act [Cap 216 R. E. 2019] (the Act) Applicant herein is seeking leave of this court to appeal to the Court of Appeal of Tanzania from the judgment and decree delivered by this court (F. H. Mahimbaii, J.) on 14th July, 2023 in Land Appeal No. 17 of 2O22.The application accompanied by an affidavit deponed by the applicant. Page 1 of 5 Briefly, the applicant herein lost in the land suit at the District Land and Housing Tribunal for Mara at Musoma (the trial tribunal) in Land Application No. 140 of 2019 where it was ruled that his evidence was of less weight than that of respondent. Applicant and respondent were claiming ownership over a piece of land. It was said during trial that the p land was owned by applicant's father the late Mzee Warati Nyambarya who inherited from his father in 1940s. on the other hand, respondent claimed that the disputed land belong to his father the late Mzee Kilenga 1 Kunurya whom was given by the late Mzee Warati Nyambarya. As said applicant loose in that case and his appeal to this court was dismissed for want of merit. Unsatisfied, he is making his way to the apex court of the land where, leave of this court is mandatory. When respondent was served with application and affidavit, he

filed counter affidavit with notice of Preliminary objection (PO) that; 1. Since application is not accompanied with a copy of Notice of । Appeal or an averment to that effect, the application is thus * incompetent As the custom of this court, PO has to be determined first. The matter was scheduled for hearing of PO and Mr. Gervas Emmanuel represented applicant while Mr. Baraka Makowe appeared for the respondent, both are learned advocates. : Page 2 of 5 Submitting in supporting of the application, counsel for the applicant contended that so far as the application has no attachment of Notice of Appeal then the application is incompetent. Citing rule 46 (1) of the Court of Appeal Rules (as mended) he said if application is for the leave or certificate the notice of appeal must be filed. Counsel submitted that in the application at hand, the applicant did not attach copy of notice neither did he inform this court that the notice has been issued to Court of Appeal. For those reasons, he prays application to be dismissed with costs. Mr. Gervas in response submitted that rule does not indicate that the notice must accompany application as he file PO as if it is the requirement of the law. He submitted that the cited rule need applicant to lodge notice of appeal and the same was lodge on 11/08/2023 and the copy was supplied to respondent via Village Ward Executive officer and his

chamber has a copy too and pray to show the same in court. This prayer of showing the copy to court was objected by Mr. Baraka that counsel was submitting evidence and insisting the copy was not attached. Mr. Gervas was of the position that due to the fact that the notice has been filed and the cited rule need applicant to file notice before Page 3 of 5 application and the respondent has knowledge, he did not find reason for dismissal of application as prayed by the counsel for respondent, if that will be the position, then, Mr. Gervas seek refuge under overriding objective under section 3A of the Civil Procedure Code, Cap 33. In rejoinder Mr Makowe complained of evidence intended to be tendered by Mr. Gervas claiming that his objection Was based on fact that the । notice was not attached neither affidavit explained the same. He said overriding objective should not be applied on| issues clearly stipulated by law. My duty is only one, to determine if the objection has merit. Centre of the objection is rule 46 of the Court of Appela rules which reads; i । Where an application for a certificate or for leave is necessary, it shall be made after the nofice ofappeal is lodged.' The rule quoted, although not for this court but it clearly provides for the condition of filing the notice. Mr. Makowe complained the notice was not attached. I find attachment is not requirement the

important thing is the notice to be filed first. Whether the requirement was fulfilled, that issue will be determined by the Court of Appeal when the appeal is called for determination. I find it is not for this court to rule out whether the appeal is properly filed as the rules are for the Court of Appeal. I Page 4 of 5 hold, from the submission of Mr. Gervas that he filed notice of appeal and that is the requirement under the cited Rule and no more. To prove that applicant have filed the Notice will amount to tendering evidence which am not entertaining and the same will oust the meaning of preliminary objection. That being so, I hold the PO is less merit and is hereby overruled with costs. It is so ordered. M. L. KOMBA Judge 06 Otober, 2023 Page 5 of 5