omary shamte ngweya vs rahma ally mjie 2022 tzhclandd 248 25 april 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO.63 OF 2022 (Arising from the decision of the High Court of Tanzania at Dar es Salaam in Land Appeal No. 265 of 2019 by Hon. Maghimbi, J) OMARY SHAMTE NGWEYA.................................................................. APPLICANT VERSUS RAHMA ALLY MJIE........................................................................ RESPONDENT RULING Date of last Order 21.04.2022 Date of Ruling 25.04.2022 A.Z.MGEYEKWA, J In this application, the Court is called upon to grant leave that will enable the applicant to institute an appeal to the Court of Appeal of Tanzania. The application is brought under section 47 (2) of the Land Disputes Courts Act, 2019 and section 95 of the Civil Procedure Code Cap. 33 [R.E 2019]. i The impending application is intended to impugn the decision of this court in respect of Land Appeal No. 265 of 2019 dated 24th March, 2021. Supporting the application is the affidavit deposed by Omary Shamte Mgweya, the applicant, wherein grounds of the applicant's against the impugned decision are contained. These grounds are contained in paragraphs 5 and 6 of the affidavit dated 22nd February, 2022. The application has met opposition. The respondent filed a counter-affidavit in which Rahma Ally Mjie, the respondent valiantly opposed the applicant’s application. On the parties' concurrence, hearing of the matter was through written submissions. When the matter was scheduled for mention on 14th March, 2022 the applicant appeared in person, unrepresented while the respondent enjoyed the legal service of Mr. Kizungu, learned Advocate. The respondent has defaulted the court order which was made at the prayer of the applicant and the respondent’s counsel did not object the applicant's prayer, but he has not filed its reply to written submissions as agreed and as consequently ordered by the court. As per the court order, the reply submissions were to be filed by 11th April, 2022. No such submissions have been filed today 24th April, 2022 when writing a judgment. The Applicant was timeous in filing his written submissions. He 2 filed his submissions in chief on 28th March, 2022; quite in line with the court order dated 30th March, 2022. This court has held time without number that failure to file written submissions as ordered by the court is akin to a failure to appear when the case is called on for hearing and consequent orders for such nonappearance are inevitable. There is an unbroken chain of decisions of this court and the Court of Appeal of Tanzania that so hold. These include Hidaya Zuberi v Bongwe Mbwana PC Civil Appeal No. 98 of 2003 DSM (unreported), Perpetua H. Kirigini & Another v Dr. Msemo Diwani Bakari, Land Appeal No. 3 of 2005 (unreported), Athumani Kungubaya & Another v PSRC & TTCL, Miscellaneous Civil Appeal No. 1 or 2001 (unreported), In the case of National Insurance Corporation of (T) Ltd & Another v Shengena Ltd, Civil Application No. 20 of 2007 at DSM (unreported), it was held that:- "The applicant did not file submission on the due date as ordered. Naturally, the Court could not be made impotent by the party's inaction. It had to act... it is trite law that failure to file submission n(s) is tantamount to failure to prosecute one's case." Similar, in the case of Tanzania Harbours Authority v Mohamed R. Mohamed [2002] TLR 76; Patson Matonya v Registrar Industrial Court 3 of Tanzania & Another, Civil Application No. 90 of 2011 (unreported). In consequence of the foregoing, it is ordered that the matters be determined ex-parte, by considering the application based on the submission filed by the applicant. In his written submission, the applicant submitted that he was not satisfied with the decision of this court hence he decided to raise his points of appeal to the Court of Appeal of Tanzania. To fortify her short submission she referred this court to paragraph 5 of her attached affidavit where she has listed points of law which worth the Court of Appeal’s consideration as follows:- 1. The Hon. Judge of this court failed to put into consideration that the respondent herein did fail to sue the applicant and join him as a part of the case at Mianzini Ward Tribunal while the facts reveal that the respondent was aware that the suit was sold to the applicant before he builds his house on the suit land. 2. That the judgment of Ward Tribunal relied upon by this court in reaching its decision was not tendered and admitted before the Temeke District Land and Housing Tribunal. 4 3. That this court did not consider and examined properly the reason made the trial tribunal order the respondent to compensate the applicant. Submitting on the first point of law, he submitted that it is a legal principle that the respondent had a duty to sue the applicant at Mianzini Ward Tribunal to serve him with a notice before demolition of his house which was constructed on the suit land. He lamented that the court has a duty to do justice and not condemn the person unheard. Submitting on the second point of law, the applicant argued that the appellate court has relied on the document which was not tendered and admitted as an exhibit by the trial tribunal. Thus, it was his submission that this court came out with the wrong position that the matter was determined to its finality and the right parties have been determined and that no fresh suit can be brought on the same subject matter. He lamented that as long as the applicant nor his vendor were not parties to the alleged suit by the respondent at Mianzini Ward Tribunal, then, it was proper for the applicant to sue the respondents at Temeke District Land and Housing Tribunal. On the strength of the above submission, the applicant urged this court to grant leave to appeal to the Court of Appeal of Tanzania. 5 Having heard the submissions of the applicant and the respondent for and for the application, A review of the rival depositions is centered on one grand question for settlement by the Court, this is as to whether the application demonstrates a sufficient ground or a disturbing feature that requires the attention of the Court of Appeal of Tanzania. The issue for determination takes into account the settled position of the law to the effect that the grant of leave to appeal to the Court of Appeal is not a matter of a mere formality. A party intending to be allowed to appeal must demonstrate, with material sufficiency, that the intended appeal carries an arguable case that merits the attention of the Court of Appeal. Thus, a grant of leave is granted if prima facie grounds are meriting the attention of the Court of Appeal. In other words, the grounds are base on solid grounds which are weighty enough to engage the minds of the Court of Appeal. It is trite law that leaves to appeal to the Court of Appeal is granted if prima facie grounds are meriting the attention of the Court of Appeal as it was held in the case of Sango Bay v Dresdner Bank A.G [1971 ] EA 17, it was held that:- 6 Leave to appeal will be granted where prima facie it appears that there are grounds which merit serious judicial attention and determination by a superior Court. ” Equally, in the case of Gaudensia Mzungu v IDM Mzumbe, Civil Application No. 94 of 1994 (unreported), the Court of Appeal of Tanzania held that:- “ Leave will be granted if, prima facie there are grounds meriting the attention and decision of the Court of Appeal.” Accordingly, the case referred to before this court must be looked at its context rather than authority against the success of the intended appeal. Howbeit, my reading of the decision reveals that this Court concluded after noting that the matter was determined on its finality and the rights of the parties were determined. In the case of Grupp v Jangwani Sea Breeze Lodge Ltd, Commercial case No.93 of 2002 (unreported) my brother Massati, J (as he then was) expressed the matter this way:- "... I have no jurisdiction to go into merits or deficiencies of the judgment or orders of my sister judge in this application. All that I am required to determine is whether there are arguable issues fit for the consideration of the Court of Appeal....” 7 Applying the above authority, I have noted that in paragraph 6 of the applicant's affidavit, the applicant has raised some arguable issues that this court decided that the matter appellate tribunal had no jurisdiction to entertain the dispute of ownership over the land while the same dispute was already been determined and executed between the same parties. In my view, once an appeal is eventually lodged, the Court of Appeal of Tanzania will determine the above issue. I do not think these grounds raised in the applicant’s affidavit is not serious enough to be determined by the Court of Appeal of Tanzania. Therefore, I will, in the circumstances, grant the applicant leave to appeal to the Court of Appeal. In consequence, this application succeeds. No order as to the costs. Order accordingly. Dated at Dar es S JUDGE 5.04.2022 Ruling delivered on 25th April, 2022 in the presence of the applicant and respondent. 8