twazihirwa tabraham mgema vs james christian basil administrator of the estate of the late christial basil kiria the deceased 2018 tzhclandd 79 27 april 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 372 OF 2017 (Arising from decision of the High Court of Tanzania (Land Division) at Dar es Salaam vide Land Appeal No. 160 of 2016 originating from District Land and Housing Tribunal for Morogoro at Morogoro vide Land Case No. 94 of 2014) TWAZIHIRWA TABRAHAM MGEMA................ APPLICANT VERSUS JAMES CHRISTIAN BASIL (As Administrator of the Estate of the Late Christial Basil Kiria, the Deceased)........ ............. RESPONDENT RULING Date of last Order: 5/3/2018 Date of Ruling: 27/4/2018 MGONYA, J. Before the court, is an Application for leave to Appeal to the Court of Appeal of Tanzania against the decision of this Court in Land Appeal No. 160 of 2015 which was delivered by my learned brother Hon. Kente, J on 2nd day of May, 2017. The Application is laid under the provision of Section 47 (1) of the Land Dispute Courts Act 2002. Pursuant to the order dated 5th March, 2018 the matter was argued by way of written submission. The real legal battle, is whether the Applicant has demonstrated point of law that calls for the Court of Appeal's intervention. Of course, leave to Appeal is not automatic. It is indeed within the discretion of the court to grant or refuse. However, I am mindful that the discretion must be judiciously exercised. Through paragraph 4 of the Affidavit in support of Application and the explanation during the hearing, the concern is whether the Appellate court revaluated the evidence properly. The Respondent propounded that the points of law fit for determination by the Court of Appeal of Tanzania have not been established. I am conversant with the settled position of law that where there is misdirection and non-direction on the evidence or the lower court have misapprehended the substance, nature and quality of the evidence, an appellate court is entitled to look at the evidence and make its on findings. Indeed an Appellate Court has jurisdiction to review the evidence to determine whether the conclusion of the trial Judge should stand. Now, since paragraph 4 of an affidavit in support of Application through Annexure TTM 2 touch the issue of the points re-evaluation of the evidence of the Appellate, therefore in view of this, I am satisfied that the Applicant has demonstrated point of law fit for determination by our Highest Court of Land. For that reason, I hereby grant leave to Appeal to the Court of Appeal on the points stated under paragraph 4 of the Affidavit as per Annexture TTM2. L. E. MGONYA JUDGE 27/ 4/2018 COURT: Ruling delivered in the presence of Applicant and Ms. Emmy B/c in my chamber today 27th April, 2018. L. E. MGONYA JUDGE 27/ 4/2018