registered trustees of umoja wa wanawake tanzania vs hassan shaban hassan and another 2020 tzhclandd 2284 25 september 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC.LAND APPLICATION No. 423 OF 2019 THE BOARD OF THE REGISTERED TRUSTEES OF UMOJA WA WANAWAKE TANZANIA...........................APPLICANT VERSUS HASSAN SHABAN HASSAN................................... 1st RESPONDENT ZENA MGAYA ....................................................... 2nd RESPONDENT RULING S.M. MAGHIMBI, J: This ruling is in respect of the Application for leave to appeal to the Court of Appeal against the judgment of this Court in Land Appeal No. 21 of 2018 delivered on 28th June 2019. The application is made under the provisions of Section 47 (2) of the Land Disputes Courts Act, Cap. 216 R.E 2002 ("The Act"), Section 5(1) (c) of the Appellate Jurisdiction Act (Cap 141 R.E 2002) and Rule 45(a) of the Tanzania Court of Appeal Rules, 2009. And supported by the Affidavit dated 29th July, 2019 of Odhiambo Kobas, learned Counsel representing the applicant. The application has been countered for through the Counter Affidavit of Samuel Shadrack Ntaliba learned counsel representing the 1st respondent. This application was argued by way of written submission. i In his submissions to support the application, Mr. Odhiambo argued that the matter to be appealed against was firstly instituted in the District land and Housing Tribunal For Temeke (The Tribunal) as Land Application No.21 of 2008 to which the matter in 30th January, 2018 ended in favor of the ^Respondent. The applicant herein was aggrieved and filed before this court a Land Appeal No. 21/2018 which was heard and determined by Honorable Ndunguru, J on 28th June, 2019. That there are serious points of law to be determined by the Court of Appeal including: i .) Whether the property registered in the name of the Registered Trustees of Umoja wa Wanawake wa Tanzania can be said to have been sold to the 1st respondent herein in the absence of the sale agreement between the parties. ii .) Whether the property registered in the name of the Registered Trustees of Umoja wa Wanawake wa Tanzania can be validly said to have been sold by uongozi wa Umoja wa Wanawake Tanzania Wilaya ya Temeke in the absence of the Trustees Resolution or power of attorneys authorizing any other person other than the Trustees to sell the same. iii .) Whether the property registered in the name of the Registered Trustees of Umoja wa Wanawake wa Tanzania can be validly said to have been sold by it vide an agreement 2 which does not indicate the name of the registered Trustees of Umoja wa wa Wanawake wa Tanzania as the seller. iv .) Whether the appeal becomes incompetent in law by being preferred by one of the respondent in the tribunal who is aggrieved by the decision of the Tribunal leaving the other respondent in the tribunal who is not aggrieved by the decision of the tribunal to continue as the Respondent in an appeal together with the applicant in the Tribunal as the respondent in appeal. v .) Whether it was proper for the high court to dismiss the counter claim on the ground that the property was properly sold to the 1st respondent. He therefore prayed that the application be granted. In reply, Mr. Shadrack submitted that the application at hand raises no contentious points of law for determination by the Court of Appeal because this is application for leave and not application on the certificate on point of law. That in order to grant leave to the Applicant, there must be tangible grounds with overwhelming chances of success of the intended appeal. He argued that in the application at hand, no any reasons have been adduced warranting this Honourable Court to grant leave. Having thoroughly perused the records of this application, I am in agreement with Mr. Odhiambo that are issued which calls for the attention of the Court of Appeal. In the case at hand, the applicant alleges not to 3 have authorized the sale of the property and is challenging the sale by an individual board member, and the name of the Trustee not appearing on the said sale. This is one of the issues which I find to befit the attention of the court of appeal. In the case of Sango Bay Estates Ltd & Others V Dresdner Bank [1974] EA 17, the defunct East African Court of Appeal authoritatively held that:- "Leave to appeal from an order in civil proceedings will normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration." Considering the above points raised by the applicants, it is my considered view that the same suffice the attention of the highest court of the land bearing in mind that the Judgment and Decree of this court are appealable to the Court of Appeal. Under these circumstances, I accordingly grant the application and grant leave to the applicant to appeal to the Court of Appeal against the decision of this court in Land Appeal No.21/2018. I make no order as to costs. Application Allowed 4