FRANSIS MKEMBELA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) ATIRINGA MISC. LAND APPLICATION NO. 24 OF 2023 (Arising from Land Appeal No. 3/2023 o f the High Court o f Tanzania before Hon. A.E. Mwipopo, J. Original Application No. 166/2020 o f the District Land and Housing Tribunal o f Iringa before Hon. AJ. Majengo, Chairperson) VALERIAN ANDREW MKEMBELA (Administrator o f the Estate o f the late Mbagisa Mwamanga Mkembela)...................... APPLICANT VERSUS FRANCIS MKEMBELA .......................... RESPONDENT RULING $h October & €>h October, 2023 I.C MUGETA, J: Under section 5(l)(c) of the Appellate Jurisdiction Act and section 47(2) of the Land Disputes Courts Act, the applicant applies for leave to appeal to the Court of Appeal against the decision of this court for a reason that the learned Judge erred to uphold the decision of the lower tribunal despite being tainted with illegalities and irregularities. Unfortunately, those illegalities and irregularities have not been disclosed in the affidavit supporting the application. It is settled that leave to appeal to the Court of Appeal is grantable if the application raises a point of law or matter of general importance worth consideration of the apex court per the decision in the case of British Broadcasting Corporation v. Eric Sikujua Page 1 of 5 Ng'maryo, Civil Application No. 138 of 2004, Court of Appeal -Dar es Salaam. I understand illegalities apparent on the record are sufficient reason to grant leave to appeal to the Court of Appeal, However, it is not sufficient to allege without disclosing them. I find no merits on this ground for failure to disclose the alleged illegalities and irregularities. The second ground is that this court upheld the decision of the trial tribunal which dismissed the application without deciding who is the legal owner of the dispute land. In reaching its decision the trial tribunal stated: "kuhusu nafuu zipi za wadaawa katika kesi n't kwamba kwa kuwa kesi ya mdai haina mashiko na umahirf wowote mbefe ya baraza basi nafuu anazoziomba mdai haziwezi kukubaiiwa baraza iinakubaii nafuu pekee aiiyoomba mdaiwa ya kutupiiia mbaii maombi haya kwa gharama ". In his application in the lower tribunal, the applicant had two substantive prayers. i), A declaration that the land in dispute is a matrimonial property. ii). Vacation (sic) by the respondent from the land in dispute. Page2 of 5 Following the dismissal of the application as above indicated, the appeal in this court was also dismissed in the following words: "In the judgment, the trial DLHT determined the issue o f ownership o f the suit land and concluded that the respondent is the lawful owner o f the suit land... The judgment has already declared the respondent to be the owner o f the suit land. I find nothing wrong in the judgment o f the DLHT". It is my view that both the trial tribunal and this court pronounced the owner of the dispute land. Firstly, by the trial tribunal dismissing the applicant's application and secondly, by this court dismissing the appeal. However, the applicant still believes that no determination has been made yet. It is not upon this court to say whether he is right or not. That is the jurisdiction of the Court of Appeal. My duty is to determine if the point raised is of general importance for the attention of the Court of Appeal. It is interesting that the applicant does not see that the question of ownership of the dispute land has already been determined. He is being adamant and I believe it shall be an abduction of duty on my part to hold that his dissatisfaction with the decision without assigning reasons for the dissatisfaction is a sufficient cause to grant the leave sought. Page 3 of 5 In the Regional Manager - TANROAD Lindi v. D Shapriya & Co. Ltd, Civil Application No. 29/2012, Court of Appeal - Dar es Salaam (unreported) it was held: "It is now settled a court hearing an application should restrain form considering substantive issues that are to be dealt with by the appellate court". In Linda Cosmas v. George Shida & 2 Others, Civil Application No. 183/08 of 2020, Court of Appeal - Dar es Salaam (unreported) it was held: "... the court's mandate in application o f this is limited to only determining if the issues or grounds o f appeal raise serious issues o f law or fact arguable by the Court o fAppeal". It is my view that by concluding that this court and the trial tribunal declared who owns the dispute land, I am not overstepping my mandate. It is a duty of this court to filter the cases going to the Court of Appeal without considering their merits. It would have been a different story if the complaint, assigning reasons thereof, was that both courts erred to so hold. Consequently, since the alleged illegalities have not been identified and both this court and the trial tribunal decided that the applicant is not the owner of the land, leave to appeal cannot be granted on Page 4 of 5 grounds that the decision of the tribunal has illegalities nor that the two courts did not declare the owner to the land. The two grounds, in my view, do not raise a legal or important or novel point of fact worthy consideration of the Court of Appeal. Further, the concurrent findings of the two courts is appealable on allegations of misdirection or misapprehension of the evidence. No such allegation has been advanced. Leave to appeal is hereby denied. Application dismissed without costs as the parties are relatives. Court: Ruling delivered in chambers in the absence of the applicant and presence of Leonard Sweke, learned advocate for the applicant who is absent and in the presence of the respondent in person. Sgd. I.C. MUGETA JUDGE 06/10/2023 Page 5 of 5 ('