20120905 TZHC Dar es Salaam

",t r~ . . --·-/--- . . • ~J .St .. /J> ~ v~ /4 5 --r/'·. IN THE HIGH COURT OF TANZANIA ~ ~~ {LAND DIVISION} ~~ AT DAR ES SALAAM LAND CASE REVISON NO. 38 OF 2009 {From the Decision of the District Land and Housing Tribunal of Kinondoni at iyiago,meni in Application No. 290 of 2008} : · THE REGISTERED TRUSTEES OF MASJID MWINYIMKUU .................................................................... _APPLICANT VERSUS JUMA KIPANGUSI .................................................................. :RESPONDENT RULING MWAMBEGELE, J.: This is an application in which the Registered Trustees of Masjid Mwinyimkuu (hereinafter referred to as "the Applicant") is seeking leave to appeal to the st Court of Appeal against the Revision Order of this court dated 1 June, 2011 (Mziray, J). The said ruling had dismissed the Applicant's application to call for revision the record of the Kinondoni District Land and Housing Tribunal in Application No. 290 of 2008. This court found that there was no error material to the merits of the case involving injustice and thus order~d that the record be returned to the Tribunal to proceed with the hearing of this case. I. ( ~ The application has been made under Rules 43 and 44 of the Court of Appeal Rules, 1979, Section 5 {1)_ {b) and {c) of the Appellate Jurisdiction Act, 1979 and any other enabling_ provisions . of the law. It is supported by the Affidavit of one . -Alhaj Shaaban Nassoro; member of the Registered Trustees of Masjid th Mwinyimkuu. The application was argued before me on 24 July, 2012. The applicant, being a legal person, was speaking through the said Alhaj Shaaban _Nassoro while Juma Kipangusi {hereinafter referred to as "the Respondent") appeared in person and was unrepresented. The Applicant submitted, and this was deposed to in the Affidavit in support of the application, that this court erred in -law to rule that the matter should proceed for hearing in the District Land and Housing Tribunal as the value of the house in dispute is Tshs. 82,000,000/= which is above the pecuniary limit of jurisdiction of the District Land and Housing Tribunal. Alhaj Nassoro further argued that the disputed house stands on a registered plot thus an affidavit obtained from the Manzese Primary court offended the provisions of Section 18 {1) {a) of the Magistrates Courts Act, Cap. ii of the Laws of Tanzania. He 2 also su~mitted that the intended appeal to the Court of Appeali of Tanzania has overwhelming chances of success. In rebuttal, Mr. Kipangusi was very brief. He submitted that the house in I dispute has the value of between Tshs. 40,0Q0i000/= _and Tshs. 45,000,000/= and that.the affidavit obtained from Manzese was correct at law. I In a rejoinder, the Applicant submitted that the allegation that the house in dispute has the value of between Tshs. 40,000,000/= and Ths. 45,000,000/= is I not -supported by evidence. He went further to state that the late Mwanjia Mfaume Hassan had given the house to the Applicant as a "wakfu" in 2004. That in 2007 she changed her mind that the house should revert to the family without informing the Applicant and that when she changed her mind, the ! house had already changed ownership from her to the Applicant. Before going into the nitty gritty of this matter, let me start with commenting on the provisions cited in support of the application. This application has been ; made under Rules 43 and 44 of the Court of Appeal Rules, 1979, Section 5 (1) (b) and (c) of the Appellate Jurisdiction Act, 1979 and any other enabling ' provisions of the law. That is to say, the a1pplication has three legs on which to I 3 i stand in this· court: first, the Court of Appeal Rules, 1979, second is the Appellate Jurisdiction Act, 1979 and the third leg is any other enabling . provisrons of the law. On the first leg, I 'state from the outset that the Court of Appeal Rules, 1979 - G.N. No. 103 of 1979 were revoked by Rule 129 of the Tanzania Court of th Appeal Rules, 2009 - G.N. No 368 published on 6 November, 2009. It is apparent therefore, that the Applicant has cited a dead law in support of its application. This is an anomaly as a result of which, if it were the only provision cited in support of the Application, I would have struck out this application at once. The anomaly cannot be saved by the transitional provisions of Rule 130 of the Tanzania Court of Appeal Rules, 2009 as the - th Application was filed on 6 June, 2011 while the riew Rules had come into ~ ~ . force on the 1 day of February, 2010 vide G.N. No. 36 of 26 January, 2010. This was well over fourteen months after the new Rules had come into force. On the second leg, the Application is purported to have been made under Section 5 (1) (b) and (c) of the Appellate Jurisdiction Act, 1979. The cited parts of this provision read: 4 I- 1. ·"(1} In civil proceedings, except where any other written Jaw for the time being in force provides otherwise, an appeal shall lie to the · Court of Appeal- (a} (b) against the following orders of the High Court made under its original jurisdiction, that is to say- (i) an order superseding an arbitration where the award has not been completed I ,, within the period allowed by the High Court; · (ii) an order on an award stated in the form of a special case; (iii) an order modifying or correcting an ' (iv) an order filing or refusing to file an agreement to refer to arbitration; ' (v) an order staying or refusing to stay a suit l · where there is an agreement to refer to I arbitration;_ i (vi) an order filing or refusing to file. an award in an arbitration without the intervention of the High Court; 5 (vii) a_n order under section 95 of the Civil Procedure Code, which relates to the award of compensation where an ar'.est or a temporary - injunction is granted; (viii) an order under any of the provisions of the Civil Procedure Code, imposing a fine or directing the arrest or detention, in civil prison, of any person, e1<cept where the arrest or detention is in exec;ution of a decree; (ix) any order specified in rule 1 of Order XL/II in the Civil Procedure Code, or in any rule of the High Court amending, or in substitution for, the rule; (c) with the leave of the. High Court o; of the Court a/Appeal, against every other decree, order, judgment, decision or finding of the High Court". (Emphasis mine). Except for the bolded part, the res~ of the provision is irrelevant to the present application. This kind of citation is omnibus which the Court does abhor. The Appellant ought to have cited the bolded part of the above as the rest is not useful to its application. I take cognisance of the fact that the representative 6 I. of the Applicant, dejure, is a lay person despite the fact that when arguing the application before me, he was quite conversant with some provisions of the law and case law as well. All the same, I give the Applicant a benefit ·of doubt and take it that the application was drafted by a lay hand. I. will, timorously, allow this application to be supported by the provisions of Se'ction 5 (1) (c) of the Appellate Jurisdiction Act, Cap. 141 of the Laws. On the third leg, ther~ are decisions of this court to the effect that the use of the phrase "any other enabling provisions of the law" is meaningless, outdated irrelevant and an unnecessary embellishment. In Ja·neth Mmari Vs International School of Tanganyika and Another, Miscellaneou~ Civil Cause No. 50 of 2005, Mihayo, J. (as he then was) had this to say: '7his song, 'any other enabling provisions of the law' is meaningless, outdated and irrelevant. The court cannot be moved by unknown provisions of the law conferring that jurisdiction. That law must therefore be known. Blanket embellishments have no relevance to the law nor do they add any value to the prayers to the court". (Emphasis not mine). 7 Mihayo, J. (as he then was) had another opportunity to comment on the phrase in Elizabeth Steven and Another Vs Attorney General, •Miscellaneous Civil Cause No. 82 of 2005, in which His Lordship held: 'The phrase any other provision of law is now useless embellishment, the law is now settled" This being the position of the law, and as I have endeavoured to demonstrate hereinabove, it follows that this Application stands only on a very thin leg; Section 5 (1) (c) of the Appellate Jurisdiction Act. As already alluded to hereinabove, I have taken into consideration the fact that the drafter of the application is a lay person. That is the reason why I have, apprehensively felt that I should not inject strict principles of the law in this respect, as by so doing, justice could be. left crying. In my considered view, the Applicant ought to have made the application under the provisions of Rule 45 (a) of the Tanzania Court of Appeal Rules, 2009, Section 5 (1) (c) of the Appellate Jurisdiction Act, Cap. 141 and Section 47 (1) of the Land Dispute Courts Act, Cap. 216. 8 I now turn to the gist of the Application. I will start with the last point as raised by the Applicant in its submissions to the effect that the appeal has overwhelming chances of success. The Applicant is seeking for leave to appeal to the Court of Appeal against an order of this curt. In applications of this nature, it has been held by this court and the Court of Appeal time and again that leave will be granted only when the intended appeal has some merits whether factual or legal. On this point I had the assistance of the decision of this court in Ms 1/abila Industries LTD and 2 others Vs Tanzania Investment Bank and Another, Commercial Case No. 27 of 2002 (unreported) in which Kimaro, J. (as she then was} quoted the decision of the Court of Appeal in Wambele Mtumwa Shamte Vs Asha Juma, Civil Application No. 45 of 1999 (unreported) in which the court ofappeal held: "Unfortunately, it is not provided what factors are to be taken into account when considering whether or not to grant leave whether or not to appeal to this court. However, it is obvious that leave will only be granted if the intended appeal has some merits whether factual or legal." 9 •Madam . Judge Kima_ro (as . she then was) went on to refer to another decision of the Court of Appeal in Gaudencia Mzungu Vs the I.D.M Mzumbe, Civil Application No. 94 of 1999 (unreported) in which the same Ramadhani, J.A held: "Again leave ·is not granted because there in an argua_ble appeal. There is always an arguable appeal. What is crucially important is wh~ther there are prima facie grounds meriting an appeal to this court." Now, armed with the above position of the law, coming back to the instant application, the applicant has argued that the appeal has overwhelming chances of success. The applicant argued that the value of the property is above the pecuniary limit of the District Land and Housing Tribunal. It seems that the applicant is worried the verdict to be reached by the Tribunal will be null and void for want of relevant jurisdiction. On the other hand, the Respondent submitted that the value of the disputed premises is not that worth; it is between 40,000.000/= and 45,000,000/= .. Both the Applicant and Respondent have evidence to support their submission. The Applicant has a ,,i.-e· Valuation Report to that effect and the Respondent lias an affidavit in su.ppo~ of his submission. It is my considered view that the case is arguable better before the trial tribuna·I. The Applicant raised the objections and was overruled by the Tribunal. On this premise, it is my considered view that the intended appeal to the Court of Appeal is devoid of merits be it factual or legal. At this juncture, I am fortified by the decision of Kimaro, J. (as she then was) in the Ms 1/abila Industries LTD and 2 others case (supra) in which Her Ladyship held: ."While it is not disputed that a person aggrieved by a decision of the court has a right to appeal, that right can only be exercised where the intended appeal has some merit whether factual or legal." In the instant case, the prospects of success of the intended appeal as demonstrated hereinabove are very meagre. In the premises, I am hesitant to grant leave to appeal to the Court of Appeal. But. there is yet another anomaly; the intended appeal is against a Revision Order of this court. That order, in essence, refused the applicant's prayer to 11 call the record of the tribunal for revision. Mzir~y, J. ordered the record of the Tribunal to be returned immediately to the trial Tribunal for continuation of the trial. This order is interlocutory in nature as it did not mean to finalise the case. In the premises, no appeal can lie against it. The provisions of Section 5 . (2) (d) of the Appellate Jurisdiction Act, 1979 as amended by the Written Laws (Miscellaneous Amendments) (No. 3) Act, No. 25 of 2002 speak loudly and clearly as follows: "(d) no appeal or application for revision shall lie against or be made in respect of any preliminary or interlocutory decision or order of the High Court unless such decision or order has the effect of finally determining the criminal charge or suit" Since Mziray, J.'s Revision Order did not finally determine this matter; no appeal can lie against it.· This is yet another reason why the appeal has slim chances of success. In fine, the intended appeal lacks merit whether factual or legal. · The Applicant has another complaint: that the primary court of Manzese had no jurisdiction to deal with a document titled "Hati ya Kiapo cha Uthibitiho" 12 ... which was appended as Annexture RTMM - 6 to Alhaj Shaaban Nassoro"s affidavit affirmed on 05.01.2010. To understand the Applicant's com.plaint, the document complained of is reproducedhereunder: ''JAMHURI YA MUUNGANOWA TANZANIA HAT/ YA KIAPO CHA UTH/8/TIHO Mimi MWANJIA HASSAN MFAUME SONGORO KabJ Mrufiji DiniJ mwislamu wa Magomeni Mikumi Dar es Salaam Nathibitisha kuwa Mimi ni mtu mzima mwenye akili timamu bi/a . kulazimishwa ·au kushawishiwa no mtu yeyote na wala sijalewa pombe yoyote. - Naapa kuwa mimi ndiyo mwenye nyumba No. 23 Block No. 9 iliyopo Tosheka- - Magomeni Dar es Salaam. Naapa kuwa mimi nilirubuniwa na mpangaji wangu aitwaye MOHAMED/ RASHID/ MANZIJ kuwa nitoe wakfu nyumba yangu iwe mali ya msikiti ikiwa mwenyewe nikiwa hai. Ukizingatia mimi mimi ni mtu mzima sana no wala sioniJ no bi/a ushauri na ndugu zangu. 13 V . - Naapa kuwa MOHAMED RASHID/ MANZI alinisainisha vitu ambavyo sivifahamu, kwani mwenyewe sioni[.J [K]wa kiapo hiki natengua, kiapo changu cha awali cha kuitoa nyumba yangu Na. 23 Block No. 9 iliyopo Magomeni irudi katika miliki yangu. Kwa kuwa mtoa . kiapo na mwenye akili timamu nami nimekubali kuthibitisha kiapo hiki. Mbele ya: Sylvester Nyanda Saini: Sgd sahihi ya Mtoa Kiapo Cheo: Hakimu Tarehe: 15.06 2007" The document bears· a Right thumb Print of the deponent, signature of the Primary Court Magistrate who attested to it and the rubber stamp of the Primary Court of Manzese. I think the applicant has misconceived the provisions of Section 18 (1) (a) of the Magistrates Courts Act. By attesting the affidavit of the Respondent over the disputed house, the Primary Court Magistrate did not mean to entertain a suit in respect of the property deposed of. In the premises, the provisions of Section 18 (1) (a) of the Magistrates 14 .- , . ' Courts Act cannot come into play. This complaint has no basis at all. lfis also rejected. In the final analysis, leave to appeal to the Court of Appeal against a Revision st Order of this court dated 1 June, 2011, is :refused. 81:Jt before I conclude my ruling, I feel pressed to comment on the observation made by Mziray, J. in the Revision Order complained of. Before His Lordship made the said order, he observed that the Appellant is employing delaying tactics in handling this case. His -Lordship observed as follow,s: . . "... I find that the Application to revise the decision of Kinondoni District Land and Housing Tribunal is filed without any reasonable cause and in fact _it is calculated to delay the case". {Emphasis supplied). With utmost respect, I share the same sentiments with my brother on the .bench. The course resorted to by the Applicant seems to me as well a delaying tactic. For reasons best known to it, the Applicant is delaying an early determination of this. case. This Court cannot condone this p:ractice. It is the duty of this court to see to it that litigations are finalised within reasonable 15 time to accord litigants to participate in some other productive en~feavours. It is now over three years since the Appellant's preliminary objections were . . overruled by the District Land and Housing Tribunal. l_n my considered view, if it were not for the applicant's seemingly delaying tactics, this matter could perhaps have been finalised. The intended appeal has no merit whether factual or legal. Consequently, this application cannot succeed; Much as I agree that a party dissatisfied with a decision of this court can, as of right, appeal to the Court of Appeal, that right is limited to situations where the intended appeal has some merit whether factual or legal. · This application is dismissed with costs. This matter should be remitted to the Kinondoni District Land and Housing Tribunal at Kinoridoni to proceed with the hearing of this case on merits. I so order. th DATED at DAR ES SALAAM this 5 day of September, 2012. J.C. M. MWAMBEGELE JUDGE 16