salum amas jaza vs tatu omary kitambi and another 2020 tzhclandd 145 22 may 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 582 OF 2019 (Arising from the Judgment of this Court (Mohamed, J in Land Appeal No. 82 of 2017) SALUM ALMAS JAZA (As Administrator of the Estate of the Late Mlang'amba Binti Mwichande) ......... APPLICANT VERSUS TATU OMARI KITAMBI...,..... .................... 1st RESPONDENT JUMA ATHUMANI KISUNGURA .................. .2nd RESPONDENT RULING I. MAIGE-J Leave to appeal to the Court of Appeal is, in this matter, sought, under section 47 (1) of the Land Disputes Court Act, Cap 216, R.E., 2002 ("the LDCA"), against the decision of this Court as per Hon. A. Mohamed J, in Land Appeal No. 82 of 2017. The factual grounds justifying the grant are contained in the applicant's affidavit which supports the application. It has not been opposed by any counter affidavit. i At the hearing of the application, the parties appeared in persons and were not represented. The application was argued by way of written submissions. The application filed his written submissions in due compliance with my direction. The respondent did not. Presumably, he is not objecting to the application. The decision intended to be challenged to the Court of Appeal confirmed the decision of the trial tribunal dismissing the claim for being time barred. The determination of the appeal was based on the application of sections 9(1) and 35 (1) of the Law of Limitation Act which relate to the time limit for a claim of possession of land by an administrator. The presiding Judge subscribed to the trial chairperson that, in accordance with the respective provisions, time, for the purpose of limitation, accrued on the date of the death of the applicant's predecessor in title. In his view just as it was for the trial chairperson, the suit was time barred. The applicant doubts the concurrent opinions of the trial court and this Court on the import of the two provisions of law. It is his humble contention that, in accordance with the respective provisions, time does not start running until the defendant is in adverse possession of the land in dispute. The issue raised in the affidavit and submissions, in my reading, is novel and requires the attention of the Court of Appeal. To the best of my knowledge, the two provisions are yet to be judicially considered by the Court of Appeal. In my view therefore, the affidavit demonstrates some serious points of law and facts which require the attention of the Court of Appeal. In the final result and for the foregoing reasons therefore, the application is granted. Leave to appeal to the Court of Appeal against the judgment and decree of this Court in Land Appeal No. 82 of 2017 is hereby granted without an order as to costs. 3 Date: 22/05/2020 Coram: Hon. C. Tengwa - DR For the Applicant For the 1st Respondent Present For the 2nd Respondent RMA: Bukuku COURT: Ruling delivered in the presence of the applicant and the respondent C. Tengwa K( p E P U T Y REGISTRAR 22/05/2020 ; * ;1