rukia mussa ally vs uteshi mohamed sungura 2018 tzhclandd 440 27 july 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISCELLANEOUS LAND APPLICATION NO 791 OF 2016 (Original Land Case No. 319 o f 2013 High Court Land Division) RUKIA MUSSA ALLY.................................................. APPLICANT VERSUS UTESHI MOHAMED SUNGURA.................................. RESPONDENT RULING 8 /5/2018 & 27/7/2018 MZUNA, 3.: Rukia Mussa Ally who is defended by Mr. Kalolo Bundala is seeking for leave to appeal to the Court of Appeal against the decision of this court in Land Case No. 319 of 2013. The application is supported by the affidavit deponed by the applicant. It is made under section 47(1) of the Land Disputes Courts Act, Cap 216 RE 2002. The respondent Uteshi Mohamed Sungura who is defended by Mr. Tonya, the learned counsel did not object it. The main case which is subject for appeal concerned the Administratrix (applicant) who wanted to dispose of the suit property by way of sale so that i the beneficiaries could get their shares. The respondent alleged owned it jointly with the deceased and it was not disputed that she was staying in the suit premise during the lifetime of the deceased. The suit plot is located at Kariakoo, Dar es Salaam. The suit which sought among others for eviction as the respondent was a trespasser was dismissed. Hearing of the application proceeded by way of written submissions. Submitting in support of the application Mr. Kalolo-Bundala argued that paragraph 3 of the affidavit in support of this application proposes the intended issues to be raised in the Court of Appeal to wit; First, whether the learned judge was justified in law in finding and holding that the applicant then plaintiff had failed to prove her case in view of the evidence on record. Second, whether the trial judge properly evaluated the evidence on record so as to justify or reach the decision sought to be challenged. It is Mr. Kalolo's contention that both these issues of law requires the examination of evidence and the judgment. That the appeal stands a chance of success. He made reference to a number of decided cases including that of Abubakar Ali Himid vs. Edward Nyelusye, Civil Application No. 51 of 2007 (CAT) unreported. In reply thereto Mr. Tonya argued that, they do not oppose the application for leave to appeal to the Court of Appeal. He added that, the right of appeal subsists on the basic principle of natural justice of the right to be heard. I have keenly followed the submissions from the learned counsels. I agree with them on the position of the law when issue of seeking leave is concerned. Nsekela, JA, as he then was) had the occasion to say in the case of Abubakar Ali Himid vs. Edward Nyelusye (supra), that:- ".../ am aware that leave to appeal is not automatic, it is discretionary...the applicant has established that the application is not flivolous, vexatious or useless. There is an arguable appeal hence the need for this Court to adjudicate upon the rival contentious o f the parties." That would mean, leave to appeal being discretionary in nature can be granted where the application shows there is "an arguable appeal". The above holding agree in principle to what the Court of Appeal also held in the case of Harban Haji Mosi and Another vs. Omar Hilal Seif and Another [2001] TLR 409 at Pg. 414 -415, that:- "Leave is grantable where the proposed appeal stands reasonable chances o f success or where, but not necessarily, the proceedings as a whole reveal such disturbing features as to require the guidance o f the Court o f Appeal..." (Emphasis mine). From the nature of this case, it is clear that there are "disturbing features" which needs to be determined by the Court of Appeal. The points which calls for leave are well outlined in paragraph 3 of the affidavit as follows: (i) Whether the learnedjudge wasjustified in law in finding and holding that the applicant then plaintiffhad failed to prove her case in view o f the evidence on record. (ii) Whether the trialjudge properly evaluated the evidence on record so as to justify or reach the decision sought to be challenged. The above listed points are what I consider to be serious matters worth to be determined by the Court of Appeal. Accordingly leave to appeal to the Court of Appeal is hereby granted as prayed for. Application granted with no order for costs.