twaib ndembo others vs luchunga sita others 2018 tzhclandd 378 6 june 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISCELLANEOUS LAND CASE APPLICATION NO. 492 OF 2016 TWAIBU NDEMBO & 9 OTHERS................................. APPLICANTS VERSUS LUCHUNGA SITA & 8 OTHERS.................................. RESPONDENT RULING 14/3/2018 & 6/6/2018. MZUNA, J.: This is an application for leave to appeal to the Court of Appeal. It has been preferred under Section 47 (1) of the Land Disputes Courts Act, Cap 216 RE 2002 and is supported by joint affidavit deponed by the applicants. The background story is that the applicants unsuccessfully sued the respondents in a claim for a piece of land measuring 100 acres at the Ward Tribunal. Their appeal was dismissed both at the District Land and Housing Tribunal and before the High court. Still minded, they wish to have the Court of Appeal decision on the matter, hence the present application. Parties appeared in person and the application was argued by way of written submissions. The main issue is whether there is a point of law worth consideration by the Court of Appeal? Before going into the merits or otherwise of this application, there has been raised a point of law by the respondents that the present application is time barred. However, this point should not detain me. The time limitation for filing an application for leave is 14 days from the date of judgment or order appealed against. The judgment of this court was delivered on 10th June, 2016 and the present application was filed on 24th June, 2014. Counting from 10th June to 24th June it is exactly 14 days. Based on the above facts, I find that the application has been filed well within the time prescribed by the law (see, Rule 45 (b) of the Court of Appeal Rules, 2009). Back to the main application. It is argued by the applicants that there are points of law to be determined by the Court of Appeal in that the judgment of this court did not adhere to the provisions of section 39(1) (a) and section 45(1) (a) of the Village Land Act. Cap 114, RE 2002. That mere abandonment of the suit property did not waive the duty of the Village Council to conduct publication before reallocation. In reply thereto, the respondents submitted that the applicants have failed to disclose the cause of action as against either of the respondents or at all and that there are no circumstances to warrant the grant of the orders sought. Further that the judgment is legally sound. The question is, was there violation of the provisions of section 39(1) (a) and section 45(1) (a) of the Village Land Act. Cap 114 RE 2002 as argued by the applicant? The above cited sections touches on issuing of notices to the person in breach of any condition relating to the ownership of land which was left unattended and how to remedy such breach. Further, if land is left fallow for five years, it should be deemed to have been unoccupied. The court at page 4, 6, 7, 9 cited and applied extensively the provisions of section 45 (1) and 39 (1) (a) of the Village Land Act, Cap 114 RE 2002. Special attention has been on the findings at page 9 which was responding to submissions in respect of the second issue which touches on failure to issue notice before the reallocation. It is argued that the Hon. Judge failed to address the issue as provided by law. This argument is based on what his Lordship Ndika, J (as he then was) remarked that:- "...It seems to me that as there was no proof that the appellants owned the suit property, the Kidugalo Village Council was entitled to treat as wild and unoccupied and then allocate it to the respondents. Accordingly, the question that the Council violated the procedure for reallocation of abandoned land does not arise..." The point of law for consideration by the Court of Appeal, is was there exceptional factors which did not demand for issuing of 30 days' notice as per the law? I hereby certify that there is a point of law for determination by the Court of Appeal in view of what was held in the case of Harban Haji Mosi and Another v. Omar Hilal Seif and Another [2001] TLR 409 at P. 414 -415, that:- "...The proceedings as a whole reveal such disturbing features as to require the guidance of the Court of Appeal..." (Emphasis mine). For the above stated reasons, I hereby grant this application with no order for costs. 5