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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF ARUSHA - ATARUSHA MISC. CIVIL APPL. NO. 146 OF 2015 (C/F High Court Land Case No. 13/2006) PROFESSOR SENDUI OLE NGUYAINE (As Administrator of the Estate of the late Mzee NGUYAINE MEIJO MOLLEL) ........................APPLICANT VERSUS THE ARUSHA CITY COUNCIL............................ RESPONDENT RULING Date of last Order: 12/02/2016 Date of Ruling: 04/03/2016 BEFORE S. C. MOSHI, J. The applicant lodged this application under the prov1s1on of Section 47(1) and (3) of the Courts (Land Disputes Settlements) Act 02/2002, Section 5(1) (c) of the Appellate Jurisdiction Act, Cap. 141 R.E 2002, read together with Rule 45(a) of the Tanzania Court of Appeal Rules, 2009. Seeking for the following orders:- 1. That the applicant be given leave to appeal to the Court of Appeal against Judgment and decree in High Court Land Case 1 ( No. 13/2006 decision by Honourable Madame Justice Mugasha delivered on the 22 nd day of October, 2014. 2. Costs to be borne by the respondent. The application is supported by the affidavit of the applicant's counsel one Mr. Elvaison E. Maro learned counsel. Arguing the application Mr. Maro prayed to adopt the affidavit supporting the application in its entirety. He argued that in the case of British Broadcasting Corporation Vs Erick Sikujua Ng'imaryo Civil App. No. 138 of 2004 the Court of Appeal pointed out what should be considered before the court grant or refuse leave, he said that there has to be an arguable appeal, it doesn't have to be shown that there is overwhelming chances of success. He said in their first proposed ground of appeal it is their contention that the trial judge the case without the aid of assessors he said that being 2006 case by then parties had option to have suit to be with the aid of assessors or not, they choose to have the aid of assessors but the same was not done, he said that the omission was fatal the Court of Appeal will be invited to nullify the proceedings. On the 8th proposed ground of Appeal the issue was whether the disputed land belonged to the estate of Ng'uyeine Moijo Mollel and the trial Judge made the finding in the affirmative, their contention is that having so found she should have ordered repossession of land to the applicant as there is sufficient evidence at page 34, 35 and 39 of the proceedings which established that the land was rent free. Coming to the 9th proposed ground of Appeal he argued that if the respondent was a mere licensee then the license would have started to run when the license was terminated, it is their opinion that the holding of the High Court that the suit was time barred was on wrong conception as he was an invitee an invitee or a licensee irrespective of long possession can neither invoke adverse possession nor limitation of time. He said that the applicant has an arguable 2 grounds of appeal which needs to be looked at and decided by the Court of Appeal of Tanzania. Replying to the above submission the respondent counsel Ms. Nemayan argued that all the intended grounds 1, 8, 9 and 10 do not contain any point of law which need to be decided upon by the court of Appeal, on the first proposed ground of appeal it was her argument that the counsel for the applicant was present through the proceedings as an officer of the court he was supposed to address the court on the issue of assessors she was of the view that this is not a point of law which needs an attention of the Court of Appeal. Submitting in respect of the 8, 9 and 10 intended grounds of appeal she was of the view that the applicants counsel has not raised any point of law worth determination by the Court of Appeal. Gone through the record the issue for consideration before this court is whether the intended appeal has some merits to be considered by the Court of Appeal. Having gone through the Applicant's draft memorandum of Appeal main issues for consideration before the Court of Appeal are found in paragraph 1, 9 and 10 of the proposed memorandum of appeal which states:- 1. The High Court erred in trying land case number 13/2006 without the aid of assessors. 2. That the High Court erred in law and fact in holding that the appellant claim was time barred. 3. That the High Court erred in law and fact in holding that the respondent had acquired the disputed land by way of adverse possession. Considering the above points I find that there are substantial matters meriting attention of the court of Appeal. I therefore allow this application on the aforesaid reasons. 3