registered trustees of the university of bagamoyo vs robert damian 2018 tzhclandd 154 18 may 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPL. NO. 999 OF 2016 THE REGISTERED TRUSTEES OF THE UNIVERSITY OF BAGAMOYO........................................APPLICANT VERSUS ROBERT DAMIAN.........................................................RESPONDENT Date of Last Order: 21.03.2018 Date of Ruling: 18.05.2018 RULING S.A.N. WAMBURA J: This is an application for leave to appeal to the Court of Appeal as the applicant The Registered Trustees of the University of Bagamoyo was aggrieved by the decision of this Court dated 18/11 /2016 in Land Case No. 116 of 2013. The Chamber Summons is supported by an affidavit sworn by one Genoveva Namatovu Kato Advocate for the applicant. The respondent Robert Damian filed a counter affidavit challenging the application. l The applicant was represented by Mrs. Kato learned Counsel whereas the respondent enjoyed the legal services of Mr. Mahenge Advocate. In support of this application Mrs. Kato argued that there are legal issues that need to be determined by the Court of Appeal. She contended that the legal issues have been stated in paragraph 11 (i)-(iv) of the affidavit. She therefore prayed for the application to be granted as prayed. In rebuttable, Mr. Mahenge averred that the paragraphs in the affidavit do not disclose any triable issues which need the guidance of the Court of Appeal as alleged by the learned counsel for the applicant. Mr. Mahenge contended that there was an order issued by this court which ordered the applicant to file the written statement of defence out of time but the same was not filed by the applicant. That this court was right to enter a default judgment under Order VIII Rule 14(a) of the Civil 2 Procedure Code. He therefore prayed for the dismissal of the application with costs. In rejoinder, Mrs. Kato reiterated her earlier submission in chief. I have carefully read the averments in the affidavit in support of the application and at the same time gone through the counter affidavit filed by the respondent. In examining the merits of the application of this nature, the Court of Appeal has in various cases insisted that in order for the applicant to be granted leave to appeal to the Court of Appeal, there must be points of law worth consideration by the Court of Appeal. It is obvious therefore that leave to appeal is not automatic, it is discretionary, and there has to be a point of law or point of public importance as was held in the case of Rutagatina C.L.VS The Advocates Committee and Clavery Mtindo Ngalapa, Civil Application No.98 of 2010 His Lordship Justice Msoffe (as he then was) stated that; 3 “An application for leave is usually granted when there is a good reason, normally on point of law or on point of public importance that calls for the Court of Appeal intervention”. Basing on the facts averred in the affidavit especially paragraph 11 (i)-(iv), I am satisfied that the applicant has established that there is a point of law needed for consideration by the Court of Appeal. I therefore grant leave to appeal to the Court of Appeal as sought. I make no Orders as to costs. 18.05.2018 4