tanzania milling co ltd vs attorney general another 2018 tzhclandd 414 16 july 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 470 OF 2017 (Original Land Case No. 227 of 2012) TANZANIA MILLING COMPANY LIMITED................. APPLICANT VERSUS THE ATTORNEY GENERAL........... 1st RESPONDENT THE COMMISSIONER FOR LANDS 2nd RESPONDENT Date o f last order: 28/06/2018 Date o f Ruling: 16/07/2018 RULING Makuru, 3.: This ruling is in respect of an application for leave to appeal to the Court of Appeal of Tanzania. The Applicant was the Plaintiff in Land Case No. 227 of 2012 whereby he lost the case. He is now seeking for leave to challenge the said decision. The application has been brought under section 47(1) of the Land Disputes Courts Act, Cap 216 RE 2002 and it is supported by the affidavit of Audax Kahendaguza Vedasto, Advocate for the Applicant. When the matter was called on for hearing Mr. Mahenge Learned counsel appeared for the Applicant while the Respondents were represented by Mr. Benjamin Mihayo, learned State Attorney. Submitting in support of the application, Mr. Mahenge referred to the case of Abubakar Ali Himid Vs Edward Nyeluoye, Civil Application No. 51 of 2007 (Dar es Salaam Registry, unreported) which quoted with approval the case of Harban Haji Mosi and Another Vs. Omar Hilal Seif and Another [2001] TLR 409 whereby it was held 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. The purpose o f the provision is therefore to spare the court the spectre o f un-meriting matters and to enable it to give adequate attention to cases o f true public importance. " Basing on the above quotation he argued that, in the present case there are disturbing features provided in paragraph 3 of the supporting affidavit as shown in the attached copy of the draft memorandum of appeal, which needs to be determined by the Court of Appeal. He stated further that, there are reasonable chances of success and the intended grounds of appeal need deliberations by the Court of Appeal. In reply thereto Mr. Mihayo contended that, the counsel for the Applicant has failed to substantiate the chances of success. He argued that the procedures for revocation were properly followed. In rejoinder Mr. Mahenge reiterated his submission in chief and insisted that, the appeal stands great chances of success. I have gone through the chamber application, supporting affidavit as well as the counter affidavit and also considered the contending submissions of the learned counsel for both parties. In determining this application, with respect I agree with Mr. Mahenge, learned counsel for the Applicant that the case of Harban Haji Mosi and Another Vs. Omar Hilal Seif and Another [2001] TLR 409 is relevant in the present case. In his submission Mr. Mahenge mentioned the disturbing features in this matter to be, among others, that this court erred in law to hold that the Right of Occupancy in Tanzania can be revoked on the ground that the owner failed to pay rent before the right holder is given a notice to pay rent allegedly not paid and fails to comply within the time specified. He was of the view that the Commissioner for Lands should have exhausted all available remedies in the Land Act, such as issuance of a warning under section 45(4) of the Land Act, Cap 113 R.E. 2002 and that this court erred in holding that this principle is not applicable in the case at hand. I think this together with other factors which have been stated in the submissions needs intervention of the highest court of the land. It should be noted further that, right of appeal is a Constitutional right. Hence, a person has a right to access to all the courts including the highest court of the land in search for justice, provided that conditions for doing so have been met. To this end, I find merits in this application and I hereby grant it with no order as to costs. C. W. Makuru JUDGE 16/07/2018 3 Court: Ruling delivered in Court this 16th day of July, 2018 in the presence of Mr. Nyakiha, learned State Attorney for the Respondents and in the absence of the Application. The Applicant to be notified. C.W. Makuru JUDGE 16/07/2018 4